11 


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PERKINS  LIBRARY 


Uuke   Unh 


Kare  Dooks 


CODE  OF  PRACTICE 


IN 


CIVIL  CASES 


FOR    THE 


STATE  OF  LOUISIAM: 


WITH   THE 


STATUTORY  AMENDMENTS,  FROM  1825  TO  1853, 
INCLUSIVE, 


AND 


KEFERENCES  TO  THE   DECISIONS   OF  THE   SUPREME   COURT  OP 
LOUISIANA  TO  THE  SIXTH  VOLUME  OF  ANNUAL  REPORTS. 


COMPILED   Ain)  EDITED  BT 

THOMAS    GIBBES    MORGAN, 


COUNSELLOR   AT   LAW. 


NEW  ORLEANS: 
BLOOMFIELD    &    STEEL, 


Entered,  according  to  Act  of  Congress,  In  the  yew  1853,  by 

JOHN  F.  TR0%7, 

In  the  Clerk's  office  of  the  District  Court  of  the  United  States  for  the  Southern  District  of 
New-York. 


John  F.  Tbow, 
Print«r,  Stereolyper,  aod  Electrotyper, 

SO  Greene  Street, 
Behreen  Grand  &  Broome,  New  Totk< 


— i  (J  A  I 


ADVERTISEMENT. 


This  Edition  of  the  Code  of  Practice  of  Louisiana,  is 
a  reprint  of  the  Edition  of  1825, — published  by  author- 
ity of  the  State.  The  amendments  are  published  in 
full,  this  being  considered  preferable  to  incorporating 
them  into  the  text.  The  amendments  include  those 
passed  at  the  session  of  1853.  The  references  are  to 
the  6th  Annual  Reports,  none  later  having  been  pub- 
lished at  this  date. 

Baton  Rouge,  Lothsiana,  June,  1853. 


ABBREVIATIONS. 


C.  C— Civil  Code. 

M.— Martin's  Reports,  Old  Series,  12  vols. 

N.  S. — Martin's  Reports.  New  Series,  8  vols. 

L. — Louisiana  Reports,  19  vols. 

R. — Robinson's  Reports,  12  vols. 

A. — Louisiana  Annual  Reports,  6  vols. 


CONSTITUTION 

OF  THE 

STATE    OF    LOUISIANA. 


ADOPTED  IN   CONVENTION,   MAY   14,  1845. 


PREAMBLE. 


We  the  people  of  the  State  of  Louisiana,  do  ordain  and 
establish  this  Constitution. 

TITLE   I. 

DISTRIBUTION   OF   POWERS. 

Art.  1. — The  powers  of  the  government  of  the  State  of 
Louisiana  shall  be  divided  into  three  distinct  departments, 
and  each  of  them  be  confided  •  to  a  separate  body  of  magis- 
tracy, to  wit :  those  which  are  legislative  to  one  ;  those  which 
are  executive  to  another;  and  those  which  are  judicial  to 
another. 

Art.  2. — No  one  of  these  departments  nor  any  person 
holding  office  in  one  of  them,  shall  exercise  power  properly  be- 
longing to  either  of  the  others,  except  in  the  instances  herein- 
after expressly  directed  or  permitted. 

TITLE  IL 

LEGISLATIVE   DEPARTMENT. 

Art.  3. — The  legislative  power  of  the  State  shall  be 
Tested  in  two   distinct   branches,  the  one   to  be  styled  the 


6  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

House  of  Representatives,  the  other  the  Senate,  and  both  "  the 
General  Assembly  of  the  State  of  Louisiana." 

Art.  4. — The  members  of  the  House  of  Representatives 
shall  continue  in  service  for  the  term  of  two  years  from  the 
day  of  the  closing  of  the  general  elections. 

Art.  5. — Representatives  shall  be  chosen  on  the  first 
Monday  in  November,  every  two  years  ;  and  the  election  shall 
be  completed  in  one  day.  The  General  Assembly  shall  meet 
every  second  year,  on  the  third  Monday  in  January  next  en- 
suing the  election,  unless  a  different  day  be  appointed  by  law, 
and  their  sessions  shall  be  held  at  the  seat  of  Government. 

Art.  6. — No  person  shall  be  a  Representative,  who,  at 
the  time  of  his  election  is  not  a  free  wliite  male,  and  has  not 
been  for  three  years  a  citizen  of  the  United  States,  and  has  not 
attained  the  age  of  twenty-one  years,  and  resided  in  the  State 
for  the  three  years  next  preceding  the  election,  and  the  last 
thereof,  in  the  parish  for  which  he  may  be  chosen. 

Art.  7. — Elections  for  Representatives  for  the  several  par- 
ishes or  representative  districts,  shall  be  held  at  the  several 
election  precincts  estabhshed  by  law.  The  Legislature  may 
delegate  the  power  of  establishing  -  election  precincts  to  the 
parocliial  or  municipal  authorities. 

Art.  8. — Representation  in  the  House  of  Representatives, 
shall  be  equal  and  uniform,  and  shall  be  regulated  and  ascer- 
tained by  the  number  of  qualified  electors.  Each  parish  shall 
have  at  least  one  representative  :  No  new  parish  shall  be  cre- 
ated with  a  territory  less  than  six  hundred  and  twenty-five 
square  miles,  rior  with  a  number  of  electors  less  than  the  full 
number  entitling  it  to  a  representative,  nor  when  the  creation 
of  such  new  parish  would  leave  any  other  parish  without  the 
said  extent  of  territory  and  number  of  electors. 

The  first  enumeration  to  be  made  by  the  State  authorities 
under  this  Constitution  shall  be  made  in  the  year  1847,  the 
second  year  in  1855  ;  and  the  subsequent  enumerations  shall 
be  made  every  tenth  year  thereafter,  in  such  a  manner  as  shall 
be  prescribed  by  law  for  the  purpose  of  ascertaining  the  total 


CONSTITUTION    OF    THE   STATE   OF   LOUISIANA.  7 

population  and  the  number  of  qualified  electors  in  each  parish 
and  election  district. 

At  the  first  regular  session  of  the  Legislature  after  the 
making  of  each  enumeration,  the  Legislature  shall  apportion 
the  representation  amongst  the  several  parishes  and  election 
districts  on  the  basis  of  qualified  electors  as  aforesaid.  A 
representative  number  shall  be  fixed,  and  each  parish  and 
election  district  shall  have  as  many  representatives  as  the  ag- 
gregate number  of  its  electors  will  entitle  it  to,  and  an  addi- 
tional representative  for  any  fraction  exceeding  one-half  the 
representative  number.  The  number  of  representatives  shall 
not  be  more  than  one  hundred  nor  less  than  seventy. 

That  part  of  the  parish  of  Orieans  situated  on  the  left 
bank  of  the  Mississippi  shall  be  divided  into  nine  representa- 
tive districts  as  follows,  viz.: 

Ist.  First  district  to  extend  from  the  hne  of  the  parish  of 
Jefferson  to  the  middle  of  Benjamin,  Estelle  and  Thalia 
streets. 

2d.  Second  district  to  extend  from  the  last  mentioned 
limits  to  the  middle  of  Juha  street,  until  it  strikes  the  New 
Orleans  Canal,  thence  down  said  Canal  to  the  Lake. 

3d.  Third  district  to  comprise  the  residue  of  the  Second 
Municipality. 

4th.  Fourth  district  to  extend  from  the  middle  of  Canal 
street  to  the  middle  of  St.  Louis  street,  until  it  reaches  the 
Metairie  road,  thence  along  said  road  to  the  New  Orleans 
Canal. 

5th.  Fifth  district  to  extend  from  the  last  mentioned 
limits  to  the  middle  of  St.  Philip  street,  thence  down  said 
street  until  its  intersection  with  the  Bayou  St.  John,  thence 
along  the  middle  of  said  bayou  until  it  intersects  the  Me- 
tairie road,  thence  along  said  road  until  it  reaches  St.  Louis 
street. 

6th.  Sixth  district  to  be  composed  of  the  residue  of  the 
First  Municipality. 

Yth.  Seventh  district  from  the  middle  of  Esplanade  street 
to  the  middle  of  Champs  Elys^es  street. 


8  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

8tli.  Eighth  district  from  the  middle  of  Champs  Elys^ea 
street  to  the  middle  of  Enghein  street  and  Lafayette  Av- 
enue. 

9th.  Ninth  district  from  the  middle  of  Enghein  street  and 
Lafayette  Avenue  to  the  lower  limits  of  the  parish. 

Art.  9. — The  House  of  Representatives  shall  choose  its 
Speaker  and  other  officers. 

Art.  10. — In  all  elections  by  the  people  every  free  white 
male  who  has  been  two  years  a  citizen  of  the  United  States, 
who  has  attained  the  age  of  twenty-one  years,  and  resided  in 
the  State  two  consecutive  years  next  preceding  the  election, 
and  the  last  year  thereof  in  the  parish  in  which  he  offers  to 
vote,  shall  have  the  right  of  voting  :  Provided,  that  no  per- 
son shall  be  deprived  of  the  right  of  voting  who  at  the  time 
of  the  adoption  of  this  Constitution  was  entitled  to  that  right 
under  the  Constitution  of  1812.  Electors  shall,  in  all  cases 
except  treason,  felony,  breach  or  surety  of  the  peace,  be  privi- 
leged from  arrest  during  their  attendance  at,  going  to,  or  re- 
turning from  elections. 

Art.  11. — Absence  from  the  State  for  more  than  ninety 
consecutive  days,  shall  interrupt  the  acquisition  of  the  resi- 
dence required  in  the  preceding  section,  unless  the  person  ab- 
senting himself  shall  be  a  housekeeper,  or  shall  occupy  a  ten- 
ement for  carrying  on  business,  and  his  dwelling-house  or 
tenement  for  carrying  on  business  shall  be  actually  occupied 
during  his  absence,  by  his  family  or  servants,  or  some  portion 
thereof,  or  by  some  one  employed  by  him. 

Art.  12. — No  soldier,  seaman  or  marine  in  the  army  or 
navy  of  the  United  States,  no  pauper,  no  person  under  inter- 
diction, nor  under  conviction  of  any  crime  punishable  with 
hard  labor,  shaU  be  entitled  to  vote  at  any  election  in  this 
State. 

Art.  13. — No  person  shall  be  entitled  to  vote  at  any  elec- 
tion held  in  this  State,  except  in  the  parish  of  his  residence, 
and  into  cities  and  towrs  divided  into  election  precincts,  in 
the  election  precinct  in  which  he  resides. 


CONSTITUTION    OF    THE   STATE   OF    LOUISIANA.  » 

Akt.  14. — The  members  of  the  Senate  shall  be  chosen  for 
the  term  of  four  years.  The  Senate,  when  assembled,  shall 
have  the  power  to  choose  its  officers  every  two  years. 

Art.  15. — The  Legislature  in  every  year  in  which  they 
shall  apportion  representation  in  the  House  of  Eepresenta- 
tives,  shall  divide  the  State  into  senatorial  districts.  No  par- 
ish shall  be  divided  in  the  formation  of  a  senatorial  district, 
the  parish  of  Orleans  excepted.  And  whenever  a  new  parish 
shall  be  created,  it  shall  be  attached  to  the  senatorial  district 
from  which  most  of  its  territory  was  taken,  or  to  another  con- 
tiguous district,  at  the  discretion  of  the  Legislature  ;  but  shall 
not  be  attached  to  more  than  one  district.  The  number  of 
Senators  shall  be  thirty-two,  and  they  shall  be  apportioned 
among  the  senatorial  districts  according  to  the  total  popula- 
tion contained  in  the  several  districts :  Provided,  that  no 
parish  shall  be  entitled  to  more  than  one-eighth  of  the  whole 
number  of  Senators. 

Art.  16. — In  all  apportionments  of  the  Senate,  the  popu- 
lation of  the  city  of  New  Orleans  shall  be  deducted  from  the 
population  of  the  whole  State,  and  the  remainder  of  the  pop- 
ulation divided  by  the  number  twenty-eight,  and  the  result 
produced  by  tliis  di\dsion  shall  be  the  senatorial  ratio  entithng 
a  senatorial  district  to  a  Senator.  Single  or  contiguous  par- 
ishes shall  be  formed  into  districts  having  a  population  the 
nearest  possible  to  the  number  entitling  a  district  to  a  Sen- 
ator ;  and  if,  in  the  apportionment  to  be  made,  a  parish  or 
district  ftill  short  of  or  exceed  the  ratio,  one-fifth,  then  a  dis- 
trict may  be  formed  having  not  more  than  two  Senators,  but 
not  otherwise. 

No  new  apportionment  shall  have  the  effect  of  abridging 
the  term  of  service  of  any  Senator  already  elected  at  the  time 
of  making  the  apportionment. 

After  an  enumeration  has  been  made  as  directed  in  the 
(eighth)  article,  the  Legislature  shaU.  not  pass  any  law  until  an 
apportionment  of  representation  in  both  Houses  of  the  General 
Assembly  be  made. 


10  CONSTITUTION    OF   THE   STATE   OF   LOUISIANA. 

Art.  17. — At  the  first  session  of  the  General  Assembly, 
after  this  Constitution  takes  effect,  the  Senators  shall  be  equal- 
ly divided  by  lot  into  tAvo  classes  ;  the  seats  of  the  Senators  of 
the  first  class  shall  be  vacated  at  the  expiration  of  the  second 
year,  of  the  second  class  at  the  expiration  of  the  fourth  year  ; 
so  that  one-hatf  shall  be  chosen  every  two  years,  and  a  rota- 
tion thereby  kept  up  perpetually.  In  case  any  district  shaU 
have  elected  two  or  more  Senators,  said  Senators  shaU  vacate 
their  seats  respectively  at  the  end  of  two  and  four  years,  and 
lots  shall  be  drawn  between  them. 

Art.  18. — No  person  shall  be  a  Senator,  who,  at  the  time 
of  his  election,  has  not  been  a  citizen  of  the  United  States 
ten  years,  and  who  has  not  attained  the  age  of  twenty-seven 
years,  and  resided  in  the  State  four  years  next  preceding  his 
election,  and  the  last  year  thereof  in  the  district  in  which  he 
may  be  chosen. 

Art.  19. — The  first  election  for  Senators  shall  be  general 
throughout  the  State,  and  at  the  same  time  that  the  general 
election  for  Representatives  is  held  ;  and  thereafter  there  shall  be 
biennial  elections  to  fill  the  place  of  those  whose  time  of  ser- 
vice may  have  expired. 

Art,  20. — Not  less  than  a  majority  of  the  members  of 
each  House  of  the  General  Assembly  shall  form  a  quorum  to 
do  business  ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  shall  be  authorized  by  law  to  compel  the  attendance 
of  absent  members. 

Art.  21, — Each  House  of  the  General  Assembly  shall 
judge  of  the  qualification,  election  and  returns  of  its  mem- 
bers ;  but  a  contested  election  shall  be  determined  in  such 
manner  as  shaU  be  directed  by  law. 

Art,  22. — Each  House  of  the  General  Assembly  may  de- 
termine the  rules  of  its  proceedings,  punish  a  member  for  dis- 
orderly behavior,  and  with  the  concurrence  of  two-thirds  ex- 
pel a  member,  but  not  a  second  time  for  the  same  offence. 

Art,  23. — Each  House  of  the  General  Assembly  shall 
k^ep  and  publish  weekly  a  journal  of  its  proceedings  ;  and  the 


CONSTITUTION    OF   THE   STATE   OF   LOUISIANA.  11 

yeas  and  nays  of  its  members  on  any  question  shall,  at  the  de- 
sire of  any  two  of  them,  be  entered  on  the  journal. 

Art.  24. — Each  House  may  punish  by  imprisonment  any 
person  not  a  member,  for  disrespectful  and  disorderly  beha- 
vior in  its  presence,  or  for  obstructing  any  of  its  proceedings. 
Such  imprisonment  shall  not  exceed  ten  days  for  any  one  of- 
fence, . 

Art.  25. — Neither  House  during  the  session  of  the  Gen- 
eral Assembly,  shall  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  they  may  be  sitting. 

Art.  26. — The  members  of  the  General  Assembly  .shall 
receive  from  the  public  Treasury  a  compensation  for  their  ser- 
vices, which  shall  be  four  dollars  per  day  during  their  attend- 
ance, going  to  and  returning  from  the  session  of  their  respec- 
tive Houses.  The  compensation  may  be  increased  or  dimin- 
ished by  law ;  but  no  alteration  shall  take  effect  during  the 
period  of  service  of  the  members  of  the  House  of  Represen- 
tatives by  whom  such  alteration  shall  have  been  made.  No 
session  shall  extend  to  a  period  beyond  sixty  days,  to  date 
from  its  commencement,  and  any  legislative  action  had  after 
the  expiration  of  the  said  sixty  days,  shall  be  null  and  void. 
This  provision  shall  not  apply  to  the  first  Legislature,  wliich 
is  to  convene  after  the  adoption  of  this  Constitution. 

Art.  27. — The  members  of  the  General  assembly  shall,  in 
all  cases  except  treason,  felony,  breach  or  surety  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the  ses- 
sions of  their  respective  Houses,  and  going  to  or  returning 
from  the  same,  and  for  any  speech  or  debate  in  either  House, 
they  shall  not  be  questioned  in  any  other  place. 

Art.  28. — No  Senator  or  Representative  shall,  during  the 
term  for  wliich  he  was  elected,  nor  for  one  year  thereafter,  be 
appointed  or  elected  to  any  civil  office  of  profit  under  this 
State,  which  shall  have  been  created,  or  the  emoluments  of 
which  shall  have  been  increased  during  the  time  such  Senator 
or  Representative  was  in  office,  except  to  such  offices  or  ap- 
pointments as  may  be  filled  by  the  elections  of  the  people. 


12  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

Art.  29. — No  person,  while  he  continues  to  exercise  the 
functions  of  a  clergyman,  priest,  or  teacher  of  any  rehgious 
persuasion,  society  or  sect,  shall  be  eligible  to  the  General   ? 
Assembly. 

Art.  30. — No  person  who  at  any  time  may  have  been  a 
collector  of  taxes,  or  who  may  have  been  otherwise  intrusted 
with  public  money,  shall  be  eligible  to  the  General  Assembly, 
or  any  office  of  profit  or  trust  under  the  State  Government, 
until  he  shall  have  obtained  a  discharge  for  the  amount  of 
such  collections,  and  for  all  public  moneys  with  which  he  may 
have  been  intrusted. 

Art.  31. — No  bill  shall  have  the  force  of  a  law  until,  on 
three  several  days,  it  be  read  over  in  each  House  of  the  Gen- 
eral Assembly,  and  free  discussion  allowed  thereon,  unless  in 
case  of  urgency,  four-fifths  of  the  House  where  the  bill  shall 
be  pending,  may  deem  it  expedient  to  dispense  with  this  rule. 

Art.  32. — All  bills  for  raising  revenue  shall  originate  in 
the  House  of  Representatives,  but  the  Senate  may  propose 
amendments  as  in  other  bills  :  Provided,  they  shall  not  intro- 
duce any  new  matter  under  color  of  an  amendment,  which 
does  not  relate  to  raising  revenue. 

Art.  33. — The  General  Assembly  shall  regulate  by  law, 
by  whom,  and  in  what  manner  writs  of  election  shall  be  is- 
sued to  fiU  the  vacancies  which  may  happen  in  either  branch 
thereof 

Art*.  34. — A  majority  of  all  the  members  elected  to  the 
Senate,  shall  be  required  for  the  confirmation  or  rejection  of 
officers  to  be  appointed  by  the  Governor,  with  the  advice  and 
consent  of  the  Senate  ;  and  the  Senate  in  deciding  thereon, 
shall  vote  by  yeas  and  nays,  and  the  names  of  the  Senators 
voting  for  and  against  the  appointments  respectively,  shaU  be 
entered  on  a  journal  to  be  kept  for  that  purpose,  and  made 
pubHo  at  the  end  of  each  session,  or  before. 

Art.  35. — Eeturns  of  aU  elections  for  members  of  the 
General  Assembly  shaU  be  made  to  the  Secretaiy  of  State. 

Art.  36. — A  Treasurer  of  the  State  shall  be  elected  bien- 


CONSTITUTION   OF   THE   STATE   OF   LOUISIANA.  13 

nially,  by  joint  ballot  of  the  two  Houses  of  the  General  As- 
sembly. The  Governor  shall  have  power  to  fill  any  vacancy 
that  may  happen  in  that  office  during  the  recess  of  the  Legis- 
lature. 

Art.  37. — In  the  year  in  which  a  regular  election  of  a 
Senator  of  the  United  States  is  to  take  place,  the  members  of 
the  General  Assembly  shall  meet  in  the  Hall  of  the  House  of 
Kepresentatives,  on  the  Monday  following  the  meeting  of  the 
Legislature,  and  proceed  to  the  said  election. 

TITLE  IIL 

EXECUTIVE   DEPARTMENT. 

Art.  38. — The  Supreme  Executive  power  of  the  State 
shall  be  vested  in  a  Chief  Magistrate,  who  shall  be  styled  the 
Governor  of  the  State  of  Louisiana,  He  shall  hold  his  office 
during  the  term  of  four  years,  and  together  with  the  Lieuten- 
ant Governor  chosen  for  the  same  term,  be  elected  as  follows : 
— The  quaHfied  electors  for  Representatives  shall  vote  for 
a  Governor  and  Lieutenant  Governor,  at  the  time  and 
place  of  voting  for  Representatives  ;  the  returns  of  every  elec- 
tion shall  be  sealed  up  and  transmitted  by  the  proper  return- 
ing officer  to  the  Secretary  of  State,  who  shaU  deliver  them  to 
the  Speaker  of  the  House  of  Representatives,  on  the  second 
day  of  the  session  of  the  General  Assembly,  then  next  to  be 
holden.  The  members  of  the  General  Assembly  shall  meet 
in  the  House  of  Representatives,  to  examine  and  count  the 
votes.  The  person  having  the  greatest  number  of  votes  for 
Governor,  shall  be  declared  duly  elected  ;  but  if  two  or  more 
persons  shall  be  equal,  and  highest  in  the  number  of  votes 
poUed  for  Governor,  one  of  them  shaU  immediately  be  chosen 
Governor,  by  joint  vote  of  the  members  of  the  General  Assem- 
bly. The  person  having  the  greatest  number  of  votes  for 
Lieutenant  Governor,  shall  be  Lieutenant  Governor ;  but  if 
two  or  more  persons  shall  be  equal  and  highest  in  the  number 


14  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

of  votes  polled  for  Lieutenant  Governor,  one  of  them  shall  be 
immediately  chosen  Lieutenant  Governor  by  joint  vote  of  the 
members  of  the  General  Assembly. 

Art.  39. — No  person  shall  be  cHgible  to  the  office  of  Gov- 
ernor or  Lieutenant  Governor,  who  shall  not  have  attained  the 
age  of  thirty-five  years,  been  fifteen  years  a  citizen  of  the 
United  States,  and  a  resident  within  the  State  for  the  same 
space  of  time  next  preceding  his  election. 

Art.  40. — The  Governor  shall  enter  on  the  discharge  of 
his  duties  on  the  fourth  Monday  of  January  next  ensuing  his 
election,  and  shall  continue  in  office  until  the  Monday  next 
succeeding  the  day  that  his  Tsuccessor  shall  have  been  declared 
duly  elected,  and  shall  have  taken  the  oath  or  affirmation  pre- 
scribed by  this  Constitution. 

Art.  41. — The  Governor  shall  be  inehgible  for  the  succeed- 
ing four  years  after  the  expiration  of  the  time  for  which  he 
shall  have  been  elected. 

Art.  42. — No  member  of  Congress  or  person  holding  any 
office  under  the  United  States,  or  minister  of  any  religious 
society,  shall  be  ehgible  to  the  office  of  Governor  or  Lieuten- 
ant Governor. 

Art.  43. — In  case  of  the  impeachment  of  the  Governor, 
his  removal  from  office,  death,  refusal  or  inability  to  qualify, 
resignation  or  absence  from  the  State,  the  powers  and  duties 
of  the  office  shall  devolve  upon  the  Lieutenant  Governor  for 
the  residue  of  the  term,  or  until  the  Governor,  absent  or  im- 
peached, shall  return  or  be  acquitted.  The  Legislature  may 
provide  by  law  for  the  case  of  removal,  impeachment,  death, 
resignation,  disability,  or  refusal  to  qualify,  of  both  the  Gov- 
ernor and  Lieutenant  Governor,  declaring  what  officer  shall  act 
as  Governor ;  and  such  officer  shall  act  accordingly  until  the 
disabiUty  be  removed,  or  for  the  residue  of  the  term. 

Art.  44. — The  Lieutenant  Governor,  or  other  officer  dis- 
cnarging  the  duties  of  Governor,  shall,  during  his  administra- 
tion, receive  the  same  compensation  to  which  the  Governoi 
would  have  been  entitled,  had  he  continued  in  office. 


CONSTITUTION   OF   THE   STATE   OF   LOUISIANA.  15 

Art.  45. — The  Lieutenant  Governor  shall,  by  virtue  of  liis 
office,  be  President  of  the  Senate,  but  shall  have  only  a  cast- 
ing vote  therein.  Whenever  he  shall  administer  the  Govern- 
ment, or  shall  be  unable  to  attend  as  President  of  the  Senate, 
the  Senators  shall  elect  o^e  of  their  own  members  as  President 
of  the  Senate  for  the  time  being. 

Art.  46. — While  he  acts  as  President  of  the  Senate,  the 
Lieutenant  Governor  shall  receive  for  his  services  the  same 
compensation  which  shall  for  the  same  period  be  allowed  to 
the  Speaker  of  the  House  of  Representatives,  and  no  more. 

Art.  47. — The  Governor  shall  have  power  to  grant  re- 
prieves for  all  offences  against  the  State,  and  except  in  cases 
of  impeachment,  shall,  with  the  consent  of  the  Senate,  have 
power  to  grant  pardons  and  remit  lines  and  forfeitures,  after 
conviction.  In  cases  of  treason  he  may  grant  reprieves,  until 
the  end  of  the  next  session  of  the  General  Assembly,  in  wliich 
the  power  of  pardoning  shall  be  vested. 

Art.  48. — The  Governor  shall,  at  stated  times,  receive  for 
his  services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  dm'ing  the  term  for  which  he  shall  have  been 
elected. 

Art.  49. — He  shall  be  Commander  in  Chief  of  the  Army 
and  Navy  of  this  State  and  of  the  Militia  thereof,  except 
when  they  shall  be  called  into  the  service  of  the  United 
States. 

Art.  50. — He  shall  nominate,  and  by  and  with  tlie  advice 
and  consent  of  the  Senate,  appoint  all  officers  whose  offices 
are  established  by  this  Constitution,  and  whose  appointment  is 
not  therein  otherwise  provided  for  :  Provided  liowevcr,  that 
the  Legislature  shall  have  a  right  to  prescribe  the  mode  of  ap- 
pointment to  all  other  offices  established  by  law. 

Art.  51. — The  Governor  shall  have  power  to  fill  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  the  next  session, 
unless  otherwise  provided  for  in  this  Constitution  ;  but  no  jier- 
Bon  who  has  been  nominated  for  office,  and  rejected  by  the 


16  CONSTITUTION    OF    THE    STATE   OF    LOUISIANA. 

Senate,  shall  be  appointed  to  the  same  office  during  the  recess 
of  the  Senate. 

Art.  52. — He  may  require  information  in  writins;  from  the 
officers  of  the  Executive  Department,  upon  any  subject  relat- 
ing to  the  duties  of  their  respective  offices. 

Art.  53. — He  shall,  from  time  to  time,  give  to  the  General 
Assembly  information  respecting  the  situation  of  the  State, 
and  recommend  to  their  consideration  such  measures  as  he  may 
deem  expedient. 

Art.  54. — He  may,  on  extraordinary  occasions,  convene 
the  General  Assembly  at  the  seat  of  Government,  or  at  a  dif- 
ferent place  if  that  sliould  have  become  dangerous  from  an 
enemy  or  from  epidemic  ;  and  in  case  of  disagreement  be- 
tween the  two  Houses  as  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  may  think  proper,  not  ex- 
ceeding four  months. 

Art.  55. — -He  shall  take  care  that  the  laws  be  faithfully 
executed. 

Art.  56. — Every  bill  which  shall  have  passed  both  Houses 
shall  be  presented  to  the  Governor ;  if  he  approve  he  shall 
sign  it,  if  not,  he  shall  return  it  with  his  objections  to  the 
House  in  which  it  originated,  which  shall  enter  the  objections 
at  large  upon  its  journal,  and  proceed  to  reconsider  it ;  if  after 
such  reconsideration  two-thirds  of  all  the  members  elected  to 
that  House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  with 
the  objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two-tliirds  of  all  the  mem- 
bers elected  to  that  House,  it  shall  be  a  law  ;  but  in  such 
cases  the  vote  of  both  Houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  members  voting  for  and  against  the 
bill,  shall  be  entered  on  the  journal  of  each  House  respectively. 
If  any  bill  shall  not  be  returned  by  the  Governor  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented  to 
him,  it  shall  be  a  law  in  like  manner  as  if  he  had  signed  it, 
unless  the  General  Assembly,  by  adjournment,  prevent  its  re- 
turn ;  in  which  case  it  shall  be  a  law,  unless  sent  back  within 
three  days  after  their  next  meeting. 


CONSTITUTION    OF    THE   STATE   OF   LOUISIANA,  l7 

Art.  57. — Every  order,  resolution  or  vote,  to  whicli  the 
concurrence  of  both  Houses  may  be  necessary,  except  on  a 
question  of  adjoumment,  shall  be  presented  to  the  Governor, 
and  before  it  shall  take  effect,  be  approved  by  him,  or  being 
disapproved,  shall  be  repassed  by  two-thirds  of  the  members 
elected  to  each  House  of  the  General  Assembly, 

Art.  58. — There  shall  be  a  Secretary  of  State  who  shall 
hold  his  office  during  the  time  for  which  the  Governor  shall 
have  been  elected.  The  records  of  the  State  shall  be  kept 
and  preserved  in  the  office  of  the  Sccretaiy  :  he  shall  keep  a 
fair  register  of  the  official  acts  and  proceedings  of  the  Gover- 
nor, and  when  necessary  shall  attest  them.  He  shall,  when 
required,  lay  the  said  register,  and  all  papers,  minutes  and 
vouchers  relative  to  his  office,  before  either  House  of  the  Gen- 
eral Assembly,  and  shall  perform  such  other  duties  as  may  bo 
enjoined  on  him  by  law. 

Art.  59. — All  commissions  shall  be  in  the  name  and  by 
the  authority  of  the  State  of  Louisiana,  and  shall  be  sealed 
with  the  State  seal  and  signed  by  the  Governor. 

Art.  60. — The  free  white  men  of  the  State  shall  be  armed 
and  disciphned  for  its  defence  ;  but  those  who  belong  to  re- 
Hgious  societies  whose  tenets  forbid  them  to  carry  arms,  shall 
not  be  compelled  so  to  do,  but  shall  pay  an  equivalent  for  per- 
sonal services. 

Art.  61. — The  Militia  of  the  State  shall  be  organized  in 
such  manner  as  may  be  hereafter  deemed  most  expedient  by 
the  Lcgislatm-e. 

TITLE  IV. 

JUDICIARY  DEPARTMENT. 

Art.  62. — The  judicial  power  shall  be  vested  in  a  Supreme 
Court,  in  District  Courts,  and  in  Justices  of  the  Peace. 

Art.  63. — The  Supreme  Court,  except  in  case^  hereinafter 
provided,  shaU  have  appellate  jmisdiction  only,  which  jurisdic- 
2 


18  CONSTITUTION    OF   THE   STATE   OF   LOUISIANA. 

tion  shall  extend  to  all  cases  when  the  matter  in  dispute  shall 
exceed  thi-ee  hundred  dollars,  and  to  all  cases  in  wliich  the 
constitutionality  or  legality  of  any  tax,  toll  or  impost  of  any 
kind  or  nature  soever,  shall  he  in  contestation,  whatever  may 
be  the  amount  thereof ;  and  likewise  to  all  fines,  forfeitures,  and 
penalties  imposed  by  municipal  corporations,  and  in  criminal 
cases  on  questions  of  law  alone,  whenever  the  punishment  of 
death  or  hard  labor  may  be  inflicted,  or  when  a  fine  exceeding 
thi-ee  hundred  dollars  is  actually  imposed. 

Art.  64. — The  Supreme  Court  shall  be  composed  of  one 
Chief  Justice,  and  of  three  Associate  Justices,  a  majority  of 
whom  shall  constitute  a  quorum.  The  Cliief  Justice  shall  re- 
ceive a  salary  of  six  thousand  dollars,  and  each  of  the  Asso- 
ciate Judges  a  salary  of  five  thousand  five  hundred  dollars  an- 
nually. The  court  shall  appoint  its  own  Clerks.  The  Judges 
shall  be  appointed  for  the  term  of  eight  years. 

Art.  65. — AVhcn  the  first  appointments  are  made  under 
this  Constitution,  the  Chief  Justice  shall  be  appointed  for  eight 
years,  one  of  the  associate  Judges  for  six  years,  one  for  four  years, 
and  one  for  two  years  ;  and  in  the  event  of  the  death,  resignation, 
or  removal  of  any  of  said  Judges  before  the  expiration  of  the 
period  for  which  he  was  appointed,  his  successor  shall  be  ap- 
pointed only  for  the  remainder  of  this  term  ;  so  that  the  term 
of  scr^dce  of  no  two  of  said  Judges  shall  expire  at  the  same 
time. 

Art.  66. — The  Supreme  Court  shall  hold  its  sessions  in 
New  Orleans  from  the  first  Monday  of  the  month  of  Novem- 
ber, to  the  end  of  the  month  of  June  inclusive.  The  Legisla- 
ture shall  have  power  to  fix  the  sessions  elsewhere  during  the 
rest  of  the  year ;  until  otherwise  provided,  the  sessions  shall 
be  held  as  heretofore. 

Art.  67. — The  Supreme  Court  and  each  of  the  Judges 
thereof,  shall  have  power  to  issue  writs  of  habeas  corpus,  at 
the  instance  of  all  persons  in  actual  custody  under  process  iD 
all  cases  in  which  they  may  have  ajipellate  jurisdiction. 

Art.  68. — In  all  cases  in  which  the  Judges  shall  be  equal- 


CONSTITUTION    OF   THE   STATE   OF   LOUISIANA.  1& 

ly  divided  in  opinion,  the  judgment  appealed  from  shall  stand 
affirmed  ;  in  which  case  each  of  the  Judges  shall  give  his  sep- 
arate opinion  in  TNTiting. 

Art.  69. — All  Judges  by  mtue  of  their  office  shall  be 
conservators  of  the  peace  throughout  the  State.  The  style  of 
all  process  shall  be  "  The  State  of  Louisiana."  All  prosecu- 
tions shall  be  carried  on  in  the  name,  and  by  the  authority  of 
the  State  of  Louisiana,  and  conclude  against  the  peace  and 
dignity  of  the  same.  * 

Art.  70.  The  Judges  of  aU  courts  within  this  State  shall, 
as  often  as  it  may  be  possible  so  to  do,  in  every  definite  judg- 
ment, refer  to  the  particular  law  in  \'irtue  of  which  such 
judgment  may  be  rendered,  and  in  all  cases  adduce  the  rea- 
sons on  which  their  judgment  is  founded. 

Art.  71. — No  court  or  Judge  shall  make  any  allowance  by 
way  of  fee  or  compensation  in  any  suit  or  jiroceedings  except 
for  the  payment  of  such  fees  to  ministerial  officers  as  may  be 
established  by  law. 

Art.  72. — No  duties  or  functions  shall  ever  be  attached 
by  law  to  the  Supreme  or  District  Courts,  or  the  several 
Judges  thereof,  but  such  as  are  judicial ;  and  the  said  Judges 
are  prohibited  from  receiving  any  fees  of  office  or  other  compen- 
sation than  their  salaries  for  any  civil  duties  perfonned  by 
them. 

Art.  73. — The  Judges  of  all  courts  shall  be  Hable  to  im- 
peachment ;  but  for  any  reasonable  cause,  which  shall  not  be 
sufficient  ground  for  impeachment,  the  Governor  shall  remove 
any  of  them,  on  the  address  of  three-fourths  of  the  members 
present  of  each  House  of  the  General  Assembly.  In  every 
such  case,  the  cause  or  causes  for  which  such  removal  may  be 
required,  shall  be  stated  at  length  in  the  address,  and  inserted 
in  the  journal  of  each  House. 

Art.  74. — There  shall  be  an  Attorney  General  for  the 
State,  and  as  many  District  Attorneys  as  may  be  hereafter 
found  necessary.  They  shall  hold  their  offices  for  two  years  ; 
their  duties  shall  be  determined  by  law. 


20  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

Art.  75. — The  first  Legislature  assembled  under  thk 
Constitution,  sliall  divide  the  State  into  judicial  districts, 
which  shall  remain  unchanged  for  six  years,  and  be  subject  to 
reorganization  every  sixth  year  thereafter.  The  number  of 
districts  shall  not  be  less  than  twelve,  nor  more  than  twenty. 
For  each  district,  one  Judge,  learned  in  the  law,  shall  be  ap- 
pointed, except  in  the  districts  in  which  the  cities  of  New 
Orleans  and  Lafayette  are  situated,  in  which  the  Legislature 
may  estabhsh  as  many  District  Courts  as  the  pubhc  interest 
may  require. 

Art.  76. — Each  of  the  said  Judges  shall  receive  a  salar}' 
to  be  fixed  by  law,  which  shall  not  be  increased  or  diminished 
during  his  term  of  office,  and  shall  never  be  less  than  two 
thousand  five  hundred  dollars  annually.  He  must  be  a  citi- 
zen of  the  United  States,  over  the  age  of  thirty  years,  and 
have  resided  in  the  State  for  six ,  years  next  preceding  Ms  ap- 
pointment, and  have  practised  law  therein  for  the  space  of 
five  years. 

Art.  77. — The  Judges  of  the  District  Courts  shall  hold 
their  offices  for  the  term  of  six  years.  The  Judges  first  ap- 
pointed shall  be  divided  by  lot  into  three  classes,  as  nearly 
equal  as  can  be,  and  the  term  of  office  of  the  Judges  of  the 
first  class  shall  expire  at  the  end  of  two  years,  of  the  second 
class  at  the  end  of  four  years,  and  of  the  third  class  at  the 
end  of  six  years. 

Art.  78. — The  District  Courts  shall  have  original  juris- 
diction in  all  cbnl  cases,  when  the  amount  in  dispute  exceeds 
fifty  dollars,  exclusive  of  interest.  In  all  criminal  cases,  and 
in  all  matters  connected  with  succession,  their  jurisdiction 
shall  be  unhmited. 

Art.  79. — The  Legislature  shall  have  power  to  vest  in 
Clerks  of  courts  authority  to  grant  such  orders,  and  do  such 
acts  as  may  be  deemed  necessary  for  the  furtherance  of  the 
administration  of  justice,  and  in  all  cases  the  powers  thus 
granted  shall  be  specified  and  determined. 

Art.  80. — The  Clerks  of  the  several  courts  shall  be  re- 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  21 

movable  for  breach  of  good  beliavior  by  the  Judges  thereof, 
subject  in  all  cases  to  an  appeal  to  the  Supreme  Court. 

Art.  81. — The  jurisdiction  of  Justices  of  the  Peace  shall 
never  exceed,  in  civil  cases,  the  sum  of  one  hundred  dollars, 
exclusive  of  interest,  subject  to  appeal  to  the  District  Court 
in  such  cases  as  sliall  be  pro^dded  for  by  law.  They  shall  be 
elected  by  the  qualified  voters  of  each  parish,  for  the  term  of 
two  years,  and  shall  have  such  criminal  jurisdiction  as  shall  be 
provided  for  by  law. 

Art.  82. — Clerks  of  the  District  Courts  in  this  State  shall 
be  elected  by  the  qualified  electors  in  each  parish,  for  the  tenn 
of  four  years,  and  should  a  vacancy  occur  subsequent  to  an 
election,  it  shall  be  filled  by  the  Judge  of  the  court  in  which 
such  vacancy  exists,  and  the  person  so  appointed  shall  hold 
his  office  until  the  next  general  election. 

Art.  83. — A  Sherifi"  and  a  Coroner  shall  be  elected  in 
each  parish,  by  the  qualified  voters  thereof,  who  shall  hold 
their  offices  for  the  term  of  two  years,  unless  sooner  removed. 
Should  a  vacancy  occur  in  either  of  these  offices  subsequent 
to  an  election,  it  shall  be  filled  by  the  Governor ;  and  the 
2^erson  so  appointed  shall  continue  in  office  until  his  successor 
shall  be  elected  and  qualified. 

TITLE   V. 

IMPEACHMENT. 

Art.  84. — The  power  of  impeachment  shall  be  invested  in 
the  House  of  Kepresentativcs. 

Art.  85. — Impeachments  of  the  Governor,  Lieutenant 
Governor,  Attorney  General,  Secretary. of  State,  State  Treas- 
urer, and  of  the  Judges  of  the  District  Courts,  shaU  be.  tried 
by  the  Senate  ;  the  Chief  Justice  of  the  Supreme  Court,  or 
the  senior  Judge  thereof  shall  preside  during  the  trial  of  such 
impeachment.  Impeachments  of  the  Judges  of  the  Supreme 
Court,  shall  be  tried  by  the  Senate.     When  sitting  as  a  Court 


22  CONSTITUTION    OF   THE   STATE   OF   LOUISl  S.NA. 

of  Impeachment,  the  Senators  shall  be  upon  oath  or  affirma- 
tion, and  no  person  shall  be  convicted  without  the  concmTence 
of  two-tliirds  of  the  Senators  present. 

Art.  86. — Judgments  in  cases  of  impeachment  shall  ex- 
tend only  to  removal  from  office  and  disquahfication  from 
holding  any  office  of  honor,  trust  or  profit  mider  this  State, 
but  the  parties  comdcted  shall,  nevertheless,  be  subject  to  in- 
dictment, trial  and  punishment  according  to  law. 

Art.  87. — All  officers  against  whom  articles  of  impeach- 
ment may  be  preferred,  shall  be  suspended  from  the  exercise 
of  their  functions  during  the  pendency  of  such  impeachment. 
The  appointing  power  may  make  a  provisional  aj^pointmcnt 
to  replace  any  suspended  officer  until  the  decision  on  the  im- 
peachment. 

Art.  88. — The  Legislature  shall  provide  by  law  for  the 
trial,  punishment  and  removal  from  office,  of  all  other  officers 
of  the  State,  by  indictment  or  otherwise. 

TITLE   VI. 

GENERAL   PROVISIONS. 

Art.  89. — Members  of   the   General  Assembly,  and   all 
officers,  before  they  enter  upon  the  duties  of  their  offices  shall 
take  the  following  oath  or  affirmation:    "I  (A.  B.),  do  sol-' 
emnly  swear  (or  affirm),  that  I  will  faithfully  and  impartially 

discharge  and  perform  aU  the  duties  incumbent  on  me  as , 

according  to  the  best  of  my  abilities  and  understanding,  agree- 
ably to  the  Constitution  and  laws  of  the  United  States,  and 
of  this  State  ;  and  I  do,  further,  solemnly  swear  (or  affirm) 
that,  since  the  adoption  of  the  present  Constitution,  I,  being 
a  citizen  of  this  State,  have  not  fought  a  duel  with  deadly 
weapons  within  this  State,  nor  out  of  it,  with  a  citizen  of  this 
State,  nor  have  I  sent  or  accepted  a  challenge  to  fight  a  duel 
with  deadly  weapons  with  a  citizen  of  this  State,  nor  have  I 
acted  as  second  in  carrying  a  challenge,  or  aided,  advised,  oi 
assisted  any  person  thus  offending,  so  help  me  God." 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  2S 

Akt.  90. — Treason  against  the  State  sliall  consist  only  in 
levying  war  against  it,  or  in  adhering  to  its  enemies,  giving 
them  aid  and  comibrt.  No  person  shall  he  convicted  of  trea- 
son, unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  his  own  confession  in  open  com-t. 

Art.  91. — Every  person  shall  be  disquahfied  from  holding 
any  office  of  trust  or  profit  in  this  State,  who  shall  have  been 
competed  of  having  given,  or  offered,  a  bribe  to  procure  his 
election  or  appointment. 

Art.  92. — Laws  shall  be  made  to  exclude  from  office  and 
from  the  right  of  suffrage,  those  who  shall  hereafter  be  con- 
victed of  bribery,  perjury,  forgery,  or  other  high  crimes  or  mis- 
demeanors. The  privilege  of  free  suffrage  shall  be  supported 
by  laws  regulating  elections,  and  prohibiting  under  adequate 
penalties  all  undue  influence  thereon,  from  power,  bribeiy, 
tumult  or  other  improper  practice. 

Art.  93. — No  money  shall  be  drawn  from  the  Treasuiy 
but  in  pursuance  of  specific  appropriations  made  by  law,  nor 
shall  any  appropriation  of  money  be  made  for  a  longer  term 
than  two  years.  A  regular  statement  and  account  of  the  re- 
ceipts and  expenditures  of  all  pubhc  money  shall  be  pubhshed 
annually,  in  such  manner  as  shall  be  prescribed  by  law. 

Art.  94. — It  shall  be  the  duty  of  the  General  Assembly 
to  pass  such  laws  as  may  be  necessaiy  and  proper  to  decide 
differences  by  arbitration. 

Art.  95. — All  civU  officers  for  the  State  at  large  shall  re- 
side within  the  State,  and  all  district  or  parish  officers  witliin 
their  districts  or  parishes,  and  shall  keep  their  offices  at  such 
places  therein  as  may  be  required  by  law.  And  no  person 
shall  be  elected  or  appointed  to  any  parish  office  who  shall  not 
have  resided  in  such  parish  long  enough  before  such  election, 
or  appointment,  to  have  required  the  right  of  voting  in  such 
parish  ;  and  no  person  shall  be  elected  or  appointed  to  any 
district  office,  who  shall  not  have  resided  in  such  district,  or 
an  adjoining  district,  long  enough  before  such  appointment,  or 
election,  to  have  acquired  the  right  of  voting  for  the  same. 


24  COXSTITUTION    OF   THE    STATE    OF   LOUISIANA. 

Art.  96. — The  duration  of  all  offices  not  fixed  by  thit 
Constitution  shall  never  exceed  four  years. 

Art.  97. — All  civil  officers,  except  the  Governor  and 
Judges  of  the  Supreme  and  District  Courts,  shall  be  remova- 
ble by  an  address  of  ax  majority  of  the  members  of  both 
Houses,  except  those  the  removal  of  whom  has  been  otlicnvise 
provided  for  by  tliis  Constitution. 

Art.  98. — Absence  on  the  business  of  tliis  State  or  of  the 
United  States,  shall  not  forfeit  a  residence  once  obtained,  so 
as  to  deprive  any  one  of  the  right  of  suffi-age,  or  of  being 
elected  or  appointed  to  any  office  under  the  exceptions  con- 
tained in  tliis  Constitution. 

Art.  99. — It  shall  be  the  duty  of  the  Legislature  to  pro- 
vide by  law  for  deductions  from  the  salaries  of  pubhc  officers 
who  may  be  guilty  of  a  neglect  of  duty. 

Art.  100. — The  Legislatm-e  shall  point  out  the  manner 
in  which  a  person  coming  into  the  State  shall  declare  his  resi- 
dence. 

Art.  101. — In  all  elections  by  the  people,  the  vote  shaU  be 
by  ballot,  and  in  all  elections  by  the  Senate  and  House  of 
Representatives,  jointly  or  separately,  the  vote  shaU  be  given 
viva  voce. 

Art.  102. — No  member  of  Congress,  nor  person  holding 
or  exercising  any  office  of  trust  or  profit  under  the  United 
States,  or  either  of  them,  or  under  any  foreign  power,  shall  be 
ehgible  as  a  member  of  the  General  Assembly,  or  hold  or  ex- 
ercise any  office  of  trust  or  jirofit  under  the  State. 

Art.  103. — The  huvs,  pubhc  records,  and  the  judicial  and 
legislative  written  j)roceedings  of  the  State,  shall  be  promul- 
gated, preserved  and  conducted  in  the  language  in  wliich  the 
Constitution  of  the  United  States  is  written. 

Art.  104. — The  Secretary  of  the  Senate,  and  Clerk  of  the 
House  of  Representatives,  shall  be  conversant  with  the  French 
and  EngUsh  languages  ;  and  members  may  address  either 
House  in  the  French  or  English  language. 

Art.  105. — The  General  Assembly  shall  direct  by  law  how 


CONSTITUTION    OF    THE    STATE   OF   LOUISIANA.  25 

persons  who  are  now  or  may  hereafter  become  sureties  for  pub- 
lic officers  may  be  discharged  from  such  suretyship. 

Art.  106. — No  power  of  suspending  the  hiws  of  the  State 
shall  be  exercised,  unless  by  the  Legislature  or  its  authority. 

Art.  107. — Prosecutions  shall  be  by  indictment,  or  infor- 
mation. The  accused  shall  have  a  speedy  public  trial  by  an 
impartial  jury  of  the  -sdcinage  :  he  shall  not  be  compelled  to 
give  evidence  against  himself ;  he  shall  have  the  right  of  being 
heard  liy  himself  or  counsel ;  he  shall  have  the  right,  unless 
he  shall  have  fled  from  justice,  of  meeting  the  witnesses  face 
to  face,  and  shall  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor. 

Art.  108. — All  prisoners  shall  be  bailable  by  sufficient 
sureties,  unless  for  capital  offences,  where  the  proof  is  evident, 
or  presumption  great ;  and  the  privilege  of  the  habeas  corpus 
shall  not  be  suspended,  unless  when  in  case  of  rcbelKon  or  in- 
vasion the  public  safety  may  require  it. 

Art.  109. — No  ex  post  facto  law,  nor  any  law  impairing 
the  obhgation  of  contracts,  shall  be  passed  ;  nor  vested  rights 
be  divested,  unless  for  purposes  of  public  utihty,  and  for  ade- 
quate compensation  previously  made. 

Art.  110. — The  press  shall  be  free.  Eveiy  citizen  may 
freely  speak,  -wiite,  and  publish  his  sentiments  on  all  subjects  ; 
being  responsible  for  an  abuse  of  this  Hberty. 

Art.  111. — Emigration  from  the  State  shall  not  be  pro- 
hibited. 

Art.  112. — The  General  Assembly,  which  shall  meet  af- 
ter the  first  election  of  Kepresentatives  under  this  Constitu- 
tion, shall,  within  the  first  month  after  the  commencement  of 
the  session,  designate  and  fix  the  seat  of  government,  at  some 
place  not  less  than  sixty  miles  from  the  city  of  New  Orleans, 
by  the  nearest  travelling  route  ;  and  if  on  the  Mississippi  river, 
by  the  meanders  of  the  same  :  and  when  so  fixed,  it  shall  not 
be  removed  without  the  consent  of  four-fifths  of  the  members 
of  both  Houses  of  the  General  Assembly.  The  sessions  shall 
be  held  in  New  Orleans  until  the  end  of  the  year  1848. 


26  CONSTITUTION    OF    THE    STATE    OF   LOUISIANA. 

Art.  113. — The  Legislature  shall  not  pledge  the  faith  of 
the  State  for  the  payment  of  any  boncls,  bills,  or  other  con- 
tracts or  obhgations  for  the  benefit  or  use  of  any  person  or 
jDersons,  corporation  or  body  poHtic  whatever.  But  the  State 
shall  have  the  right  to  issue  new  bonds  in  payment  of  its  out- 
standing obhgations  or  liabihties,  whether  due  or  not ;  the 
said  new  bonds,  however,  are  not  to  be  issued  for  a  larger 
amount,  or  at  a  higher  rate  of  interest,  than  the  original  obh- 
gations they  are  intended  to  replace. 

Art.  114. — The  aggregate  amount  of  debts  hereafter  con- 
tracted by  the  Legislature,  shall  never  exceed  the  sum  of  one 
hundred  thousand  dollars,  except  in  case  of  war,  to  repel  inva- 
sions or  suppress  insurrections,  unless  the  same  be  authorized 
by  some  law,  for  some  single  object  or  work,  to  be  distinctly 
specified  therein  ;  wliich  law  shall  pro\dde  ways  and  means, 
by  taxation,  for  the  pajmient  of  running  interest  during  the 
whole  time  for  which  said  debt  shall  be  contracted,  and  for 
the  full  and  punctual  discharge  at  maturity  of  the  capital  bor- 
rowed ;  and  said  law  shall  be  irrepealable  until  principal  and 
interest  are  fully  paid  and  discharged,  and  shall  not  be  put 
into  execution  until  after  its  enactment  by  the  first  Legisla- 
ture returned  by  a  general  election  after  its  passage. 

Art.  115. — The  Legislature  shall  provide  by  law  for  a 
change  of  venue  in  civil  and  criminal  cases. 

Art.  116. — No  lottery  shall  be  authorized  by  tliis  State, 
and  the  buying  or  seUing  of  lottery  tickets  within  the  State, 
is  prohibited. 

Art.  117. — No  divorce  shall  be  granted  by  the  Legisla- 
ture. 

Art.  118. — Every  law  enacted  by  the  Legislature  shall 
embrace  but  one  object,  and  that  shall  be  expressed  in  the 
title. 

Art.  119. — No  law  shaU  be  revised  or  amended  by  refer- 
ence to  its  title  ;  but  in  such  case,  the  act  revised,  or  section 
amended,  shall  be  re-enacted  and  j)ubhshed  at  length. 

Art.  120. — The  Legislature  shaU  never  adopt  any  system 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  27 

or  code  of  laws  by  general  reference  to  such  system  or  code  of 
laws,  but  in  all  cases  shall  specify  the  several  provisions  of  the 
laws  it  may  enact. 

Art.  121. — The  State  shall  not  become  subscriber  to  the 
stock  of  any  cori^oration  or  joint  stock  company. 

Art.  122. — No  corporate  body  shall  be  hereafter  created, 
renewed,  or  extended,  with  banking  or  discounting  jmAdlcgcs. 

Art.  123. — Corporations  shall  not  be  created  in  this  State 
by  special  laws,  except  for  political  or  municipal  pui-poses  ;  but 
the  Legislature  shall  provide,  by  general  laws,  for  the  organi- 
zation of  all  other  corporations,  except  corporations  with  bank- 
ing or  discounting  privileges,  the  creation  of  which  is  pro- 
hibited. 

Art.  124. — From  and  after  the  month  of  January,  1890, 
the  Legislature  shall  have  the  power  to  revoke  the  charters  of 
all  corporations  whose  charters  shall  not  have  expired  previous 
to  that  time,  and  no  coi-porations  hereafter  to  be  created  shall 
ever  endure  for  a  longer  term  than  twenty-five  years,  except 
those  which  are  political  or  municipal. 

Art.  125. — The  General  Assembly  shall  never  grant  any 
exclusive  privilege  or  monopoly,  for  a  longer  period  than  twenty 
years. 

Art.  126. — No  person  shall  hold  or  exercise,  at  the  same 
time,  more  than  one  civil  office  or  emolument,  except  that  of 
Justice  of  the  Peace. 

Art.  127. — Taxation  shall  be  equal  and  uniform  through- 
out the  State.  After  the  year  1848  all  property,  on  which 
taxes  may  be  levied,  in  this  State,  shall  be  taxed  in  proportion 
to  its  value,  to  be  ascertained  as  directed  by  law.  No  one  spe- 
cies of  property  shall  be  taxed  higher  than  another  species  of 
property  of  equal  value,  on  which  taxes  shall  be  levied  ;  the 
Legislature  shall  have  power  to  levy  an  income  tax,  and  to  tax 
aU  persons  pursuing  any  occupation,  trade  or  profession. 

Art.  128. — The  citizens  of  the  city  of  New  Orleans  shall 
have  the  right  of  appointing  the  several  public  officers  neces- 
sary for  the  administration  of  the  police  of  the  said  city,  pur- 


28  CONSTITUTION    OF   THE    STATE    OF   LOUISIANA. 

STiant  to  the  mode  of  elections  wliicli  shall  be  prescribed  by 
the  Legislature  :  ^jrov/c^ec?,  that  the  Mayor  and  Record  ei-g 
shall  be  inehgible  to  a  seat  in  the  General  Assembly  ;  and  the 
Mayor,  Recorders,  and  Aldermen  shall  be  commissioned  by  the 
Governor  as  Justices  of  the  Peace,  and  the  Legislature  may 
vest  in  them  such  criminal  jurisdiction  as  may  be  necessary 
for  the  pimishment  of  minor  crimes  and  offences,  and  as  the 
police  and  good  order  of  said  city  may  require. 

Art.  129. — The  Legislature  may  pro\dde  by  law  in  what 
case  officers  shall  continue  to  perform  the  duties  of  their  offices 
until  then-  successors  shall  have  been  inducted  into  office. 

Art.  130. — Any  citizen  of  this  State  who  shall,  after  the 
adoption  of  tliis  Constitution,  fight  a  duel  T\ith  deadly  wea- 
pons vnih  a  citizen  of  this  State,  or  send  or  accept  a  challenge 
to  fight  a  duel  with  deadly  vp^eapons,  either  within  the  State  or 
out  of  it,  with  a  citizen  of  this  State,  or  who  shall  act  as 
second,  or  kno■\^dngly  aid  or  assist  in  any  manner,  those  thus 
offending,  shall  be  deprived  of  holding  any  office  of  trust  or 
profit,  and  of  enjoying  the  right  of  suffrage  under  this  Con- 
stitution, 

Art.  131. — The  Legislature  shall  have  power  to  extend 
this  Constitution,  and  the  jurisdiction  of  this  State  over  any 
tenitory  acquired  by  compact  with  any  State,  or  with  the 
United  States,  the  same  being  done  by  the  consent  of  the 
United  States. 

Art.  132. — The  Constitution  and  Laws  of  this  State  shaU 
be  promulgated  in  the  EngHsh  and  French  languages. 

TITLE  IV. 

PUBLIC    EDUCATION. 

Art.  133.  There  shaU  be  appointed  a  Superintendent  of 
Public  Education,  who  shaU  hold  his  office  for  two  years.  His 
duties  shall  be  prescribed  by  law.  He  shall  receive  such  com- 
pensation as  the  Legislatm-e  may  direct. 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  2$' 

Art.  134. — The  Legislature  shall  establish  free  Public 
Schools  throughout  the  State,  and  shall  provide  means  for 
their  support  by  taxation  on  property  or  otherwise. 

Art.  135. — The  proceeds  of  all  lands  heretofore  granted 
by  tlio  United  States  to  this  State  for  the  use  or  support  of 
scliools,  and  of  all  lands  wliich  may  hereafter  be  granted  or  be- 
queathed to  the  State,  and  not  expressly  granted  or  bequeathed 
for  any  other  purpose,  wliich  hereafter  may  be  disposed  of  by 
the  State,  and  the  proceeds  of  the  estates  of  deceased  persons 
to  which  the  State  may  become  entitled  by  law,  shall  be  held 
by  the  State  as  a  loan,  and  shaU  be  and  remain  a  j)erpetual 
fund,  on  which  the  State  shall  pay  an  annual  interest  of  six 
per  cent.  ;  wliich  interest,  together  mth  aU  the  rents  of  the 
unsold  lands,  shall  be  appropriated  to  the  support  of  such 
schools,  and  this  iippropriation  shall  remain  inviolable. 

Art.  136. — All  moneys  arising  from  the  sales  which  have 
been  or  may  hereafter  be  made  of  any  lands  heretofore  grant- 
ed by  the  United  States  to  this  State,  for  the  use  of  a  semi- 
naiy  of  learning,  and  from  any  land  of  donation  that  may 
hereafter  be  made  for  that  purj)ose,  shall  be  and  remain  a  per- 
petual fund,  the  interest  of  which  at  six  per  cent  per  annum, 
shall  be  appropriated  to  the  support  of  a  seminary  of  learning 
for  the  promotion  of  literature  and  the  arts  and  sciences,  and 
no  law  shall  ever  be  made  diverting  said  fund  to  any  other  use 
than  to  the  estabHshment  and  improvement  of  said  seminary 
of  learning. 

Art.  137. — An  University  shall  be  established  in  the  city 
of  New  Orleans.  It  shall  be  composed  of  four  faculties,  to 
wit :  one  of  law,  one  of  medicine,  one  of  the  natural  sciences, 
and  one  of  letters. 

Art.  138. — It  shaU  be  called  the  "  University  of  Louisi- 
ana," and  the  Medical  College  of  Louisiana,  as  at  present  or- 
ganized, shall  constitute  the  faculty  of  medicine. 

Art.  139. — The  Legislature  shall  provide  by  law,  for  its 
further  organization  and  government ;  but  shall  be  under  no 
obligation  to  contribute  to  the  establishment  or  support  of  said 
University  by  appropriations. 


30  CONSTITUTION    OF   THE    STATE    OF   LOUISIANA. 


TITLE  VIII. 

MODE   OF    REVISING   THE    CONSTITUTION. 

Art.  140. — Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  Senate  or  House  of  Repre- 
sentatives, and  if  the  same  shall  be  agreed  to  by  three-fifths 
of  the  members  elected  to  each  House,  and  approved  by  the 
Governor,  such  proposed  amendment  or  amendments  shall  be 
entered  on  their  journals,  with  the  yeas  and  nays  taken  there- 
on, and  the  Secretary  of  State  shaU  cause  the  same  to  be 
pubHshed,  three  months  before  the  next  general  election,  in  at 
least  one  newspaper,  in  French  and  English,  in  every  parish  in 
the  State  in  which  a  newspaper  shall  be  pubhshed  ;  and  if,  in 
the  Legislature  next  afterwards  chosen,  such  proposed  amend- 
ment or  amendments  shaE  be  agreed  to  by  a  majority  of  the 
members  elected  to  each  house,  the  Secretary  of  State  shall 
cause  the  same  again  to  be  pubhshed  in  the  manner  aforesaid, 
at  least  three  months  previous  to  the  next  genefal  election  for 
Representatives  to  the  State  Legislature,  and  such  proposed 
amendment  or  amendments  shall  be  submitted  to  the  people 
at  said  election ;  and  if  a  majority  of  the  quaHfied  electors 
shall  approve  and  ratify  such  amendment  or  amendments,  the 
same  shall  become  a  part  of  the  Constitution,  If  more  than 
one  amendment  be  submitted  at  a  time,  they  shaU  be  submit- 
ted in  such  manner  and  form  that  the  peo]3le  may  vote  for  or 
against  each  amendment,  separately. 

TITLE  IX. 

SCHEDULE. 

Art.  141. — The  Constitution  adopted  in  1812,  is  declared 
to  be  superseded  by  this  Constitution,  and  in  order  to  carry 
the  same  into  effect  it  is  hereby  declared  and  ordained  as  fol- 
lows : 

Art,  142. — AU  rights,  actions,  prosecutions,  claims  and 


CONSTITUTION    OF   THE    STATE   OF   LOUISIANA. 


31 


contracts,  as  well  of  individuals  as  of  bodies  corporate,  and  all 
laws  in  force  at  the  time  of  the  adoption  of  this  Constitution, 
and  not  inconsistent  therewith,  shall  continue  as  if  the  same 
had  not  been  adopted. 

Art.  143. — Qntil  the  first  enumeration  shall  be  made  as 
directed  in  Article  eighth  of  this  Constitution,  the  parish  of 
Orleans  shall  have  twenty  Representatives,  to  be  elected  as 
foUows,  viz.: 

Eight  by  the  First  Municipality,  seven  by  the  Second  Mu- 
nicipaUty,  and  four  by  the  third  Municipality,  to  be  distribu- 
ted among  the  nine  Representative  districts  as  follows,  by 
allotting  to  the 


First  District 

2 

The  parish 

of  Livingston 

1 

Second 

u 

2 

u 

St.  Tammany 

1 

Third 

(( 

3 

(( 

Point  Coup6e 

1 

Fourth 

cc 

3 

u 

Concordia 

1 

Fifth 

u 

8 

(( 

Tensas 

1 

Sixth 

(( 

2 

(C 

Madison 

1 

Seventh 

(( 

2 

{( 

Carroll 

1 

Eighth 

(( 

f 

1 

(( 

Franklin 

1 

Ninth 

u 

1 

(( 

St.  Mary 

2 

And  to  that  part  of  the  parish 

(( 

St.  Martin 

3 

on  the 

right  bank  of  the 

u 

Vermillion 

1 

Mississippi 

1 

(( 

Lafayette 

2 

The  parish  of  Plaquemines 

3 

C( 

St.  Landry 

5 

(( 

St.  Bernard 

1 

(( 

Calcasieu 

1 

(( 

Jefferson 

3 

C( 

Avoyelles 

2 

(( 

St.  Charles 

1 

u 

Rapides 

3 

t( 

St.  Jolin  the  Baptist  1 

(( 

Natchitotches 

3 

({ 

St.  James 

2 

u 

Sabine 

2 

(( 

Ascension 

2 

;( 

Caddo 

u 

Assumption 

3 

4( 

De  Soto 

u 

Lafourche  Interior 

3 

(( 

Ouachita 

u 

Terrebonne 

2 

(( 

Morehouse 

u 

Iberville 

2 

(( 

Union 

u 

West  Baton  Rouge 

1 

(( 

Jackson 

u 

East         do 

3 

(( 

Caldwell 

u 

West  Feliciana 

2 

(( 

Catahoula 

2 

u 

East        do 

3 

(( 

Claiborne 

2 

u 

St.  Helena 

1 

(i 

Bossier 

1 

u 

Washington 

1 

Total- 

—ninety-eight. 

32  CONSTITtTTION   OF    THE    STATE   OF   LOUISIANA. 

And  the  State  shall  be  divided  into  the  following  Senato- 
rial Districts  : 

All  that  portion  of  the  parish  of  Orleans  lying  on  the  east 
side  of  the  Mississippi  River,  shall  compose  one  senatorial  dis- 
trict, and  shall  elect  four  Senators. 

The  parishes  of  Plaquemines,  St.  Bernard,  and  that  part 
of  the  parish  of  Orleans  on  the  right  bank  of  the  river,  shall 
compose  one  district  with  one  senator. 

The  parish  of  Jefferson,  shall  compose  one  district,  with 
one  senator. 

The  parishes  of  St.  Charles  and  St.  John  the  Baptist  shall 
compose  one  district,  with  one  senator. 

The  parish  of  St.  James  shall  compose  one  district,  with 
one  senator. 

The  parish  of  Ascension  shall  compose  one  district,  with 
one  senator. 

The  parishes  of  Assumption,  Lafourche  Interior  and  Ter- 
rebonne shall  compose  one  district,  with  two  senators. 

The  parishes  of  Iber^alle_  and  West  Baton  Eouge  shall 
compose  one  district,  with  one  senator. 

The  parish  of  East  Baton  Eouge  shall  compose  one  dis- 
trict, with  one  Senator, 

The  parish  of  Point  Coupee  shall  compose  one  district, 
with  one  senator. 

The  parish  of  Avoyelles  shall  compose  one  district,  with 
one  senator. 

The  parish  of  St.  Mary  shall  compose  one  district,  with 
one  senator. 

The  parish  of  St.  Martin  shall  comj)Ose  one  district,  with 
one  senator. 

The  parishes  of  Lafayette  and  Vermillion  shall  compose 
one  district,  with  one  senator. 

The  parishes  of  St.  Landry  and  Calcasieu  shall  compose 
one  district,  with  two  senators. 

The  parish  of  West  Feliciana  shall  compose  one  district, 
■with  one  senator. 


CONSTITUTION    OF   THE    STATE   OF   LOUISIANA.  33 

The  parisli  of  East  Feliciana  shall  compose  one  district, 
with  one  senator. 

The  parishes  of  St.  Helena  and  Livingston  shall  compose 
one  district,  with  one  senator. 

The  parishes  of  Washington  and  St.  Tammany  shall  com- 
pose one  district,  with  one  Senator. 

The  parishes  of  Concordia  and  Tensas  shall  compose  one 
district,  with  one  senator. 

The  parishes  of  Carroll  and  Madison  shall  compose  one 
district,  with  one  senator. 

The  parishes  of  Jackson,  Union,  Morehouse  and  Ouachita 
shall  compose  one  district,  with  one  senator. 

The  parishes  of  Caldwell,  Franldin  and  Catahoula  shall 
compose  one  district,  with  one  senator. 

The  parish  of  Eapides  shall  compose  one  district,  with  one 
senator. 

The  parishes  of  Bossier  and  Claiborne  shall  compose  one 
district,  with  one  senator. 

The  parish  of  Natchitoches  shall  compose  one  district,  with 
one  Senator. 

The  parishes  of  Sabine,  De  Soto  and  Caddo,  shall  com- 
pose one  district,  with  one  senator. 

Art.  144. — In  order  that  no  inconvenience  may  result  to 
the  public  service  from  the  taking  efioct  of  tliis  Constitution, 
no  office  shall  be  superseded  thereby,  but  the  laws  of  the  State 
relative  to  the  duties  of  the  several  officers,  Executive,  Judi- 
cial and  Military,  shall  remain  in  full  force,  though  the  same 
be  contrary  to  this  Constitution,  and  the  several  duties  shaU 
be  performed  by  the  respective  officers  of  the  State,  according 
to  the  existing  laws,  until  the  organization  of  the  Government, 
under  this  Constitution,  and  the  entering  into  office  of  the 
new  officers,  to  be  appointed  under  said  Government,  and  no 
longer. 

Art.  145. — Appointments  to  office  by  the  Executive  under 
this  Constitution,  shall  be  made  by  the  Governor  to  be  elected 
under  its  authority. 
3 


34  CONSTITUTION    OF   THE    STATE   OF   LOUISIANA. 

Art.  146. — The  provisions  of  article  twenty-eight,  concern- 
ing the  inability  of  members  of  tlie  Legislature  to  hold  certain 
offices  therein  mentioned,  shall  not  be  held  to  apjily  to  the 
members  of  the  first  Legislature  elected  under  this  Constitu- 
tion. 

Art.  147. — The  time  of  service  of  aU  officei-s  chosen  by  the 
people,  at  the  first  election  under  this  Constitution,  shaU  termi- 
nate as  though  the  election  had  been  holden  on  the  first 
Monday  of  November,  1845,  and  they  had  entered  on  the 
discharge  of  their  duties  at  the  time  designated  therein. 

Art.  148. — The  Legislature  shall  provide  for  the  removal 
of  all  causes  now  pending  in  the  Suj^reme  or  other  Courts  of 
the  State  under  the  Constitution  of  1812,  to  courts  created  by 
this  Constitution. 

Art.  149. — Appeals  to  the  Supreme  Court  from  the  parishes 
of  Jackson,  Union,  Morehouse,  Catahoula,  CaldweU,  Ouachita, 
Franklin,  Carroll,  Madison,  Tensas  and  Concordia,  shall,  until 
otherwise  provided  for,  be  returnable  to  New  Orleans. 

TITLE  X. 

ORDINANCE. 

Art.  150. — Immediately  after  the  adjournment  of  the  Con- 
vention, the  Grovernor  shall  issue  his  Proclamation,  directing 
the  several  officers  of  this  State,  authorized  by  law  to  hold 
elections  for  members  of  the  General  Assembly,  to  open  and 
hold  a  jDoU  in  every  parish  of  the  State,  at  the  places  designa- 
ted by  law,  upon  the  first  Monday  of  November  next,  for  the 
purpose  of  taking  the  sense  of  the  good  people  of  tliis  State  in 
regard  to  the  adoption  or  rejection  of  this  Constitution  ;  and 
it  shall  be  the  duty  of  the  said  officers  to  receive  the  votes  of 
aU  persons  entitled  to  vote  under  the  old  Constitution,  and 
under  this  Constitution.  Each  voter  shall  express  his  opinion 
by  depositing  in  the  ballot  box  a  ticket  whereon  shall  be  writ- 
ten, "the  Constitution  accepted,"  or  "the  Constitution  rejected/' 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA,  35 

or  some  such  words  as  will  distinctly  convey  the  intention  of 
the  voter.  At  the  conclusion  of  the  said  election,  wliich  shall 
be  conducted  in  every  respect  as  the  general  State  election  is 
now  conducted,  the  parish  judges  and  commissioners  designa- 
ted to  preside  over  the  same,  shall  carefully  examine  and  count 
each  ballot  so  deposited,  and  sliall  forthwith  make  due  returns 
thereof  to  the  Secretary  of  State,  in  conformity  to  the  provis- 
ions of  the  existing  law  upon  the  subject  of  elections. 

Art.  151. — Upon  the  receipt  of  said  returns,  or  on  the  first 
Monday  of  December,  if  the  returns  be  not  sooner  received,  it 
shall  be  the  duty  of  the  Governor,  the  Secretary  of  State,  the 
Attorney  General,  and  the  State  Treasurer,  in  the  presence  of 
all  such  persons  as  may  choose  to  attend,  to  compare  the  votes 
given  at  the  said  poll,  for  the  ratification  and  rejection  of  tliis 
Constitution,  and  if  it  shall  appear  from  said  returns  that  a 
majority  of  all  the  votes  given  is  for  ratifying  this  Constitution, 
then  it  shall  be  the  duty  of  the  Governor  to  make  proclama- 
tion of  that  fact,  and  thenceforth  this  Constitution  shaU  be 
ordained  and  estabUshed  as  the  Constitution  of  the  State  of 
Louisiana.  But  whether  this  Constitution  be  accepted  or 
rejected,  it  shall  be  the  duty  of  the  Governor  to  cause  to  be 
pubHshed  in  the  State  paper,  the  result  of  the  polls,  showing 
the  number  of  votes  cast  in  each  parish  for  and  against  the 
said  Constitution. 

Art.  152. — Should  tliis  Constitution  be  accepted  by  the 
people,  it  shall  also  be  the  duty  of  the  Governor  forthwith  to 
issue  his  proclamation,  declaring  the  present  Legislature, 
elected  under  the  old  Constitution,  to  be  dissolved,  and  direct- 
ing the  several  officers  of  the  State  authorized  by  law,  to  hold 
elections  for  members  of  the  General  Assembly,  to  hold  an 
election  at  the  places  designated  by  law,  upon  the  thhd  Mon- 
day in  January  next,  (1846)  for  Governor,  Lieutenant  Gover- 
nor, Members  of  the  General  Assembly,  and  all  other  officers 
whose  election  is  provided  for  pursuant  to  the  provisions  of 
this  Constitution.  And  the  said  election  ghall  be  conducted, 
and  the  returns  thereof  made,  in  conformity  with  existing 
laws  upon  the  subject  of  State  elections. 


36  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

Art.  153. — The  Greneral  Assembly  elected  under  this  Con- 
stitutioiL,  shall  convene  at  the  State  House,  in  the  city  of  New 
Orleans,  upon  the  second  Monday  of  February  next,  (1846) 
after  the  elections ;  and  that  the  Governor  and  Lieutenant 
Governor,  elected  at  the  same  time,  shaU  be  duly  installed  in 
office  during  the  fii'st  week  of  their  session,  and  before  it  shall 
be  competent  for  the  said  General  Assembly  to  proceed  with 
the  transaction  of  business. 

Adopted  in  Convention,  on  the  14th  day  of  May,  1845,  in 
the  city  of  New  Orleans.  In  witness  whereof  we  have  here- 
unto subscribed  our  names. 

JOSEPH  WALKEE, 
President  of  the  Convention, 
and  Senatorial  Delegate  of  the  County  of  Rapides. 
(Attest)  HORATIO  DAVIS, 

Secretary  of  the  Convention. 


CONSTITUTION 

OF  THE 

STATE    OF    LOUISIANA 


ADOPTED  IN  CONVENTION,  JULY  31,  1852. 


PEEAMBLE. 


We,  the  people  of  the  State  of  Louisiana,  do  ordain  and 
establish  this  Constitution. 

TITLE  L 

DISTRIBUTION  OF  POWERS. 

Art.  1. — The  j)owers  of  the  Government  of  the  State  of 
Louisiana  shall  be  divided  into  three  distinct  departments,  and 
each  of  them  to  be  confided  to  a  separate  body  of  magistracy, 
to  wit :  those  which  are  Legislative  to  one  ;  those  wliich  are 
Executive  to  another,  and  those  which  are  Judicial  to  another. 

Art.  2. — No  one  of  these  departments,  nor  any  j)erson 
holding  office  in  one  of  them,  shaU  exercise  power  properly 
belonging  to  either  of  the  others,  except  in  the  instances  here- 
inafter expressly  directed  or  permitted. 

TITLE  IL 

LEGISLATIVE   DEPARTMENT. 

Art.  3. — The  Legislative  power  of  the  State  shaU  be  vest- 
ed in  two  distinct  branches,  the  one  to  be  styled  "  the  House 


38  CONSTITUTION   OF   THE   STATE   OF   LOUISIANA. 

of  Representatives/'  the  other  "  the  Senate,"  and  both  "  the 
General  Assembly  of  the  State  of  Louisiana." 

Art.  4. — The  members  of  the  House  of  Eepresentatives 
shall  continue  in  sendee  for  the  term  of  two  years  from  the 
day  of  the  closing  of  the  general  elections. 

Art.  5. — RejDresentatives  shall  be  chosen  on  the  first  Mon- 
day in  N'ovember,  every  two  years  ;  and  the  election  shall  be 
completed  in  one  dayl  The  General  assembly  shall  meet  an- 
nually, on  the  third  Monday  in  January,  unless  a  different  day 
be  appointed  by  law,  and  their  sessions  shall  be  held  at  the 
seat  of  government. 

Art.  6. — Every  duly  qualified  elector  under  this  Constitu- 
tion shall  be  ehgible  to  a  seat  in  the  General  Assembly  ;  pro- 
vided that  no  person  shall  be  a  Eepresentative  or  Senator, 
unless  he  be,  at  the  time  of  his  election,  a  duly  quaUfied  voter 
of  the  Representative  or  Senatorial  District  from  which  he  is 
elected. 

Art.  7. — Elections  for  members  of  the  General  Assembly 
shall  be  held  at  the  several  election  precincts  estabHshed  by 
law.  The  Legislature  may  delegate  the  power  of  estabhshing 
election  precincts  to  the  parochial  or  municipal  authorities. 

Art.  8. — Rejiresentation  in  the  House  of  Representatives 
shall  be  equal  and  unifonn,  and  shall  be  regulated  and  ascer- 
tained by  the  total  population  of  each  of  the  several  parishes 
of  the  State,  Each  Parish  shall  have  at  least  one  Represen- 
tative. No  new  Parish  shall  be  created  with  a  territory  less 
than  six  hundred  and  twenty-five  square  miles,  nor  with  a 
population  less  than  the  full  number  entithng  it  to  a  Repre- 
sentative, nor  when  the  creation  of  such  new  Parish  would 
leave  any  other  Parish  without  the  said  extent  of  territory  and 
amount  of  population. 

The  first  enumeration  by  the  State  authorities  under  this 
Constitution  shall  be  made  in  the  year  1853,  the  second  in 
the  year  1858,  the  third  in  the  year  1865  ;  after  which  time, 
the  General  assembly  shall  direct  in  what  manner  the  census 
shall  be  taken,  so  that  it  be  made  at  least  once  in  every  pe- 


CONSTITUTION   OF   THE   STATE    OF   LOUISIANA.  39 

riod  of  ten  years,  for  the  purjjose  of  ascertaining  the  total 
poj)ulation  in  each  Parish  and  election  District. 

At  the  first  regular  session  of  the  Legislature  after  the 
making  each  enumeration,  the  Legislature  shall  apportion  the 
representation  among  the  several  Parishes  and  election  Dis- 
tricts on  the  basis  of  the  total  population  as  aforesaid.  A  rep- 
resentative number  shall  be  fixed,  and  each  Parish  an^  election 
District  shall  have  as  many  Representatives  as  its  aggregate 
population  shall  entitle  it  to,  and  an  additional  Representative 
for  any  fraction  exceeding  one-half  the  Representative  num- 
ber. The  number  of  Representatives  shall  not  be  more  than 
one  hundred  nor  less  than  seventy. 

Until  an  apportionment  shall  be  made,  and  elections  held 
under  the  same,  in  accordance  with  the  first  enumeration  to 
be  made  as  directed  in  this  article,  the  Representation  in  the 
Senate  and  House  of  Representatives  shall  be  and  remain  as 
at  present  estabhshed  by  law. 

Tlie  limits  of  the  Parish  of  Orleans  are  hereby  extended, 
so  as  to  embrace  the  whole  of  the  present  city  of  New  Orleans, 
including  that  part  of  the  Parish  of  Jefierson,  formerly  known 
as  the  City  of  Lafayette. 

All  that  part  of  the  Parish  of  Orleans  which  is  situated  on 
the  left  bank  of  the  IMississippi  River,  shall  be  di\dded  by  the 
Legislatm-e  into  not  more  than  ten  Representative  Districts, 
and  until  a  new  apportionment  shall  be  made  according  to  the 
first  census  to  be  taken  under  this  Constitution,  that  part  of 
the  City  of  New  Orleans  wliich  was  comprised  within  the  for- 
mer limits  of  the  City  of  Lafayette,  shall  vote  for  Senators 
from  the  Parish  of  Orleans,  and  form  the  Tenth  Representa- 
tive District,  and  shall  elect  two  out  of  the  three  Representa- 
tives now  apportioned  by  law  to  the  Parish  of  Jefierson  ;  the 
other  Representative  Districts  shall  remain  as  they  are  now  es- 
tabhshed. 

Art.  9. — The  House  of  Representatives  shall  choose  its 
Speaker  and  other  officers. 

Art.  10. — Eveiy  free  white  male  who  has  attained  the  age 


40  CONSTITUTION    OF    THE    STATE   OF   LOUISIANA. 

of  twenty-one  years,  and  who  has  been  a  resident  of  the  State 
twelve  months  next  preceding  the  election,  and  the  last  six 
months  thereof  in  the  Parish,  in  which  he  offers  to  vote,  and 
who  shall  be  a  citizen  of  the  United  States,  shall  have  the 
right  of  voting,  but  no  voter,  on  removing  from  one  Parish  to 
another,  within  the  State,  shall  lose  the  right  of  voting  in 
the  former  until  he  shall  have  acquired  it  in  the  latter.  Elec- 
tors shall  in  all  cases  except  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest,  during  their  attendance  at, 
going  to,  or  returning  from  elections. 

Art.  11. — The  Legislature  shall  provide  by  law,  that  the 
names  and  residence  of  all  quahfied  electors  of  the  City  of 
New  Orleans  shall  be  registered,  in  order  to  entitle  them  to 
vote  ;  but  the  registry  shall  be  free  of  cost  to  the  elector. 

Art,  12. — ^No  soldier,  seaman  or  marine  in  the  Army  or 
Navy  of  the  United  States,  no  pauper  or  person  under  inter- 
diction, nor  under  conviction  of  any  crime  punishable  with 
hard  labor,  shall  be  entitled  to  vote  at  any  election  in  this 
State. 

Art.  13. — No  person  shall  be  entitled  to  vote  at  any  elec- 
tion held  in  this  State,  except  in  the  Parish  of  his  residence, 
and  in  cities  and  towns  divided  into  election  precincts,  in  the 
election  precinct  in  which  he  resides. 

Art.  14. — The  members  of  the  Senate  shall  be  chosen  for 
the  term  of  four  years.  The  Senate  when  assembled,  shall 
have  the  power  to  choose  its  officers. 

Art.  15. — The  Legislature,  in  every  year  in  which  they 
shall  apportion  representation  in  the  House  of  Eepresentatives, 
shall  divide  the  State  into  Senatorial  Districts.  No  Parish 
shall  be  divided  in  the  formation  of  a  Senatorial  District — 
the  Parish  of  Orleans  excepted.  And  whenever  a  new  Parish 
shall  be  created,  it  shall  be  attached  to  the  Senatorial  District 
from  which  most  of  its  territory  was  taken,  or  to  another  con- 
tiguous district,  at  the  discretion  of  the  Legislature  ;  but  shall 
not  be  attached  to  more  than  one  District.  The  number  of 
Senators  shall  be  thirty-two,  and  they  shall  be  apportioned 


CONSITTUTION    OF    THE    STATE    OF   LOUISIANA.  41 

among  the  Senatorial  Districts  according  to  the  total  popula- 
tion contained  in  the  several  Districts  ;  Provided  that  no  Par- 
ish shall  be  entitled  to  more  than  five  Senators. 

Art.  16. — In  aU  apportionments  of  the  Senate,  the  popula- 
tion of  the  City  of  New  Orleans  shall  be  deducted  from  the 
population  of  the  whole  State,  and  the  remainder  of  the  popu- 
lation divided  by  the  number  twenty-seven,and  the  result  pro- 
duced by  this  di\'ision  shall  be  the  Senatorial  ratio  entithng  a 
Senatorial  District  to  a  Senator.  Single  or  contiguous  Par- 
ishes shall  be  formed  into  Districts,  having  a  population  the 
nearest  possible  to  the  number  entitling  a  District  to  a  Sena- 
tor ;  and  if,  in  the  apportionment  to  be  make,  a  Parish  or 
District  fall  short  of  or  exceed  the  ratio  one-fifth,  then  a  Dis- 
trict may  be  formed  having  not  more  than  two  Senators  but 
not  otherwise.  No  new  apportionment  shall  have  the  effect  of 
abridging  the  term  of  service  of  any  Senator  already  elected 
at  the  time  of  making  the  apportionment.  After  an  enume- 
ration has  been  made  as  directed  in  the  eighth  article,  the 
Legislature  shall  not  pass  any  law  until  an  apiwrtionment  of 
Kepresentation  in  both  Houses  of  the  General  Assembly  be 
made. 

Art.  17. — At  the  first  session  of  the  General  Assembly 
after  tliis  Constitution  takes  efi"ect,  the  Senators  shall  be  equal- 
ly divided  by  lot  into  two  classes  ;  the  seats  of  the  Senators 
of  the  first  class  shall  be  vacated  at  the  expiration  of  the  sec- 
ond year ;  of  the  second  class,  at  the  exi^iration  of  the  fourth 
year ;  so  that  one-half  shall  be  chosen  eveiy  two  years,  and  a 
rotation  thereby  kept  up  perpetually.  In  case  any  District 
shall  have  elected  two  or  more  Senators,  said  Senators  shall 
vacate  their  seats  respectively  at  the  end  of  two  and  four 
years,  and  lots  shall  be  drawn  between  them. 

Art.  18. — The  first  election  for  Senators  shall  be  general 
throughout  the  State,  and  at  the  same  time  that  the  general 
election  for  Kepresentatives  is  held  ;  and  thereafter  there  shall 
be  biennial  elections  to  fill'  the  places  of  those  whose  time  of 
service  may  have  expired. 


42  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

Art.  19. — ^Not  less  than  a  majority  of  the  members  of 
each  House  of  the  General  Assembly  shall  form  a  quorum  tc 
do  business  ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  shall  be  authorized  by  law  to  compel  the  attendance 
of  absent  members. 

Aet.  20. — Each  House  of  the  Greneral  Assembly  shall 
judge  of  the  quahfication,  election  and  returns  of  its  mem- 
bers ;  but  a  contested  election  shall  be  determined  in  ^ch 
manner  as  shall  be  directed  by  law. 

Art.  21. — ^Each  House  of  the  General  Assembly  may  de- 
termuie  the  rules  of  its  proceedings  ;  punish  a  member  for 
disorderly  behavior,  and  with  the  concurrence  of  two-thirds  ex- 
pel a  member,  but  not  a  second  time  for  the  same  offence. 

Art.  22. — Each  House  of  the  General  Assembly  shall 
keep  and  publish  a  weeldy  journal  of  its  proceedings  ;  and 
the  yeas  and  nays  of  the  members  on  any  question  shall,  at 
the  desire  of  any  two  of  them,  be  entered  on  the  journal. 

Art.  23. — Each  House  may  punish  by  imprisonment  any 
person,  not  a  member,  for  disrespectful  and  disorderly  behav- 
ior in  its  presence,  or  for  obsructing  any  of  its  proceedings. 
Such  imprisonment  shall  not  exceed  ten  days  for  any  one 
offence. 

Art.  24. — Neither  House,  during  the  sessions  of  the  Gen- 
eral Assembly  shaU,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days,  nor  to  any  other  place  than  that  in 
which  they  may  be  sitting. 

Art.  25. — The  members  of  the  General  Assembly  shall 
receive  from  the  public  treasury  a  compensation  for  their  ser- 
vices, which  shall  be  four  dollars  per  day  during  their  attend- 
ance, going  to,  and  returning  from  the  session  of  their  respect- 
ive Houses.  The  compensation  may  be  increased  or  dimin- 
ished by  law  ;  but  no  alteration  shall  take  effect  during  the 
period  of  service  of  the  members  of  the  House  of  Eepresenta- 
tives  by  whom  such  alteration  shall  have  been  made.  No 
session  shall  extend  to  a  period  beyond  sixty  days,  to  date 
fi:om  its  commencement,  and  any  legislative  action  had  after 


CONSTITUTION    OF    THE    STATE  .OF    LOUISIANA.  43 

the  expiration  of  the  said  sixty  days  shall  be  null  and  void. 
This  pro\dsion  shall  not  apply  to  the  first  Legislature  which  ii 
to  convene  after  the  adoption  of  this  Constitution. 

Art.  26. — The  members  of  the  General  Assembly  shall, 
in  all  cases  except  treason,  felony,  breach  of  the  peace,  be 
pri'sdleged  from  arrest  during  their  attendance  at  the  session 
of  their  respective  Houses,  and  going  to  or  returning  from  the 
same,  and  for  any  speech  or  debate  in  either  House,  they  shall 
not  be  questioned  in  any  other  place. 

Art.  27. — No  Senator  or  Representative  shall,  during  the 
term  for  which  he  was  elected,  nor  for  one  year  thereafter,  be 
appointed  or  elected  to  any  civil  office  of  profit  under  this 
State,  which  shall  have  been  created,  or  the  emohmicnts  of 
which  shall  have  been  increased  during  the  time  such  Senator 
or  Representative  was  in  office,  except  to  such  offices  or  ap- 
pointments as  may  be  fiUed  by  the  elections  of  the  jieople. 

Art.  28. — No  person  who  at  any  fimc  may  have  been  a 
collector  of  taxes,  whether  State,  Parish,  or  Municipal,  or  who 
may  have  been  othersvise  intrusted  with  public  money,  shall 
be  eligible  to  the  General  Assembly,  or  to  any  office  of  profit 
or  trust  under  the  State  Government,  until  he  shall  have  ob- 
tained a  discharge  for  the  amount  of  such  collections,  and  for 
all  public  moneys  with  wliich  he  may  have  been  intrusted. 

Art.  29. — No  biU  shall  have  the  force  of  a  law  until  on 
three  several  days,  it  be  read  over  in  each  House  of  the  Gene- 
ral Assembly,  and  free  discussion  allowed  thereon,  unless  in 
case  of  urgency,  four-fifths  of  the  House  where  the  bill  shall 
be  pending,  may  deem  it  expedient  to  dispense  with  this 
rule. 

Art,  30. — All  biUs  for  raising  revenue  shall  originate  in  the 
House  of  Representatives,  but  the  Senate  may  propose  amend- 
ments as  in  other  bills  ;  provided  they  shall  not  introduce  any 
new  matter  under  color  of  an  amendment,  which  does  not  re- 
late to  raising  revenue. 

Art.  31. — The  General  Assembly  sliaU  regulate  by  law, 
by  whom,  and  in  what  manner  writs  of   elections   shall  be 


44  CONSTITIITION    OF    THE    STATE    OF    LOUISIANA. 

issued  to  fill  the  vacancies  which  may  happen  in  either  branch 
thereof. 

Art.  32. — The  Senate  shall  vote  on  the  confirmation  or 
rejection  of  officers,  to  be  appointed  by  the  Governor,  with 
the  advice  and  consent  of  the  Senate,  by  yeas  and  nays,  and 
the  names  of  the  Senators  voting  for  and  against  the  appoint- 
ments respectively,  shall  be  entered  on  a  journal  to  be  kept 
for  that  purpose,  and  made  pubUc  at  the  end  of  each  session, 
or  before. 

Art.  33. — Eeturns  of  all  elections  for  members  of  the 
General  Assembly  shall  be  made  to  the  Secretary  of  State. 

Art.  34. — In  the  year  in  which  a  regular  election  for  a 
Senator  of  the  United  States  is  to  take  place,  the  members  of 
the  General  Assembly  shall  meet  in  the  Hall  of  the  House  of 
Kepresentatives,  on  the  Monday  following  the  meeting  of  the 
Legislature,  and  proceed  to  the  said  election. 

TITLE   III. 

executive  department. 

Art.  35. — The  Supreme  Executive  power  of  the  State 
shall  be  vested  in  a  Chief  Magistrate,  who  shaU  be  styled  the 
Governor  of  the  State  of  Louisiana.  He  shall  hold  his  office 
during  the  term  of  four  years,  and  together  with  the  Lieutenant 
Governor,  chosen  for  the  same  term,  be  elected  as  follows : 
The  qualified  electors  for  Eepresentatives,  shall  vote  for  a 
Governor  and  Lieutenant  Governor,  at  the  time  and  place  of 
voting  for  Kepresentatives  ;  the  returns  of  every  election  shall 
be  sealed  up  and  transmitted  by  the  proper  returning  officer  to 
the  Secretary  of  State,  who  shall  dehver  them  to  the  Speaker 
of  the  House  of  Eepresentatives,  on  the  second  day  of  the  ses- 
sion of  the  General  Assembly,  then  next  to  be  holden.  The 
members  of  the  General  Assembly  shall  meet  in  the  House  of 
Eepresentatives,  to  examine  and  count  the  votes.  The  person 
having  the  greatest  number  of  votes  for  Governor  shall  be  de- 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  45 

clared  duly  elected,  but  if  two  or  more  persons  shall  be  equal 
and  highest  in  the  number  of  votes  polled  for  Governor,  one 
of  them  shall  immediately  be  chosen  Governor  by  joint  vote 
of  the  members  of  the  General  Assembly.  The  person  hav- 
ing the  greatest  number  of  votes  for  Lieutenant  Governor  shall 
be  Lieutenant  Governor,  but  if  two  or  more  persons  shall  be 
equal  and  highest  in  the  number  of  votes  polled  for  Lieuten- 
ant Governor,  one  of  them  shall  be  immediately  chosen  Lieu- 
tenant Governor  by  joint  vote  of  the  members  of  the  General 
Assembly. 

Art.  36. — No  person  shall  be  eligible  to  the  office  of  Gov- 
ernor or  Lieutenant-Governor  who  shall  not  have  attained  the 
age  of  twenty-eight  years,  and  been  a  citizen  and  a  resident 
within  the  State  for  the  sj^ace  of  four  years  next  preceding  his 
election. 

Art.  37. — The  Governor  shall  enter  on  the  discharge  of 
liis  duties  on  the  fourth  Monday  of  January  next  ensuing  liis 
election,  and  shall  continue  in  office  until  the  Monday  next 
succeeding  the  day  that  his  successor  shall  be  declared  duly 
elected,  and  shall  have  taken  the  oath  or  affirmation  required 
by  the  Constitution. 

Art.  38. — The  Governor  shall  be  inehgible  for  the  suc- 
ceeding four  years,  after  the  expiration  of  the  time  for  which 
he  shall  have  been  elected. 

Art.  39. — No  member  of  Congress  or  person  holding  any 
office  under  the  United  States  shall  be  ehgible  to  the  office  of 
Governor  or  Lieutenant  Governor. 

Art.  40. — In  case  of  the  impeachment  of  the  Governor, 
his  removal  from  office,  death,  refusal,  or  inabiUty  to  qualify, 
resignation  or  absence  from  the  State,  the  powers  and  duties 
of  the  office  shall  devolve  upon  the  Lieutenant  Governor  for 
the  residue  of  the  term,  or  until  the  Governor,  absent  or  im- 
peached, shall  return  or  be  acquitted.  The  Legislature  may 
provide  by  law  for  the  case  of  removal,  impeachment,  death, 
resignation,  disabihty  or  refusal  to  qualify,  of  both  the  Gover- 
nor or  Lieutenant  Governor,  declaring  what  officer  shall  act  as 


46  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

Governor,  and  such  officer  shall  act  accordingly  until  the  disa* 
bilitj  be  removed  or  for  the  residue  of  the  term. 

Art.  41. — The  Lieutenant  Governor,  or  officer  discharg- 
ing the  duties  of  Governor,  shall,  during  his  administration, 
receive  the  same  comj^ensation  to  which  the  Governor  would 
have  been  entitled,  had  he  continued  in  office. 

Art.  42. — The  Lieutenant  Governor  shall,  by  virtue  of 
his  office,  be  President  of  the  Senate,  but  shall  have  only  a 
castinof  vote  therein.  Whenever  he  shall  administer  the  Gov- 
ernment,  or  shall  be  unable  to  attend  as  President^  of  the  Sen- 
ate, the  Senators  shall  elect  one  of  their  own  members  as 
President  of  the  Senate  for  the  time  being. 

Art.  43. — While  he  acts  as  President  of  the  Senate,  the 
Lieutenant  Governor  shall  receive  for  his  services  the  same 
compensation  wliich  shall  for  the  same  period  be  allowed  to 
the  Speaker  of  the  House  of  Representatives,  and  no  more. 

Art.  44. — The  Governor  shall  have  power  to  grant  re- 
prieves for  all  offences  against  the  State,  and  except  in  cases 
of  impeachment,  shall,  with  the  consent  of  the  Senate,  have 
power  to  grant  j)ardons  and  remit  fines  and  forfeiture,  after 
conviction.  In  cases  of  treason  he  may  grant  reprieves,  until 
the  end  of  the  next  session  of  the  General  Assembly,  in 
which  the  power  of  pardoning  shall  be  vested. 

Art.  45. — The  Governor  shall,  at  stated  times,  receive  for 
his  services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  the  term  for  which  he  shaU  have  been 
elected. 

Art.  46. — He  shall  be  Commander-in-Chief  of  the  Army 
and  Navy  of  this  State,  and  of  the  Mditia  thereof,  except 
when  they  shaU  be  called  into  the  sei-vice  of  the  United 
States. 

Art.  47. — He  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  Senate,  appoint  all  officers  whose  offices -are 
established  by  this  Constitution,  and  whose  appointment  is  not 
therein  otherwise  provided  for ;   Provided,  however,  that  the 


CONSTITUTION    OF    THE    STATE    OF   LOUISIAlfA.  47 

Legislature  shall  have  a  right  to  prescribe  the  appomtmcnt  to 
ill  other  offices  established  by  law. 

Art.  48. — The  Governor  shall  have  power  to  fill  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  the  next  session, 
unless  otherwise  pro^dded  for  in  this  Constitution  ;  but  no 
person  who  has  been  nominated  for  office,  and  rejected  by  the 
Senate,  shall  be  appointed  to  the  same  office  during  the  recess 
of  the  Senate. 

Art.  49. — He  may  require  information  in  ^^^iting  from 
the  officers  in  the  Executive  Department,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices. 

Art.  50. — He  shall,  from  time  to  time,  give  to  the  Gene- 
ral Assembly  information  respecting  the  situation  of  the  State, 
and  recommend  to  theu'  consideration  such  measm'es  as  he 
may  deem  expedient. 

Art.  51. — He  may,  on  extraordinary  occasions,  convene 
the  General  Assembly  at  the  seat  of  Government,  or  at  a  dif- 
ferent place,  if  that  should  have  become  dangerous  from  an 
enemy  or  from  epidemic  ;  and  in  case  of  disagreement  be- 
tween the  two  Houses  as  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  may  tliink  proper,  not  ex- 
ceeding four  months. 

Art.  52. — He  shall  take  care  that  the  laws  be  faithfully  ex- 
ecuted. 

Art.  53. — Every  bill  which  shall  have  passed  both  Houses 
shall  be  presented  to  the  Governor ;  if  he  approve,  he  shall 
sign  it,  if  not  he  shall  return  it  with  his  objections  to  the 
House  in  wliich  it  originated,  which  shall  enter  the  objections  at 
large  upon  its  journal,  and  proceed  to  reconsider  it;  if,  after  such 
reconsideration,  two-thirds  of  all  the  fnembers  elected  to  that 
House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  with  the 
objections,  to  the  other  House,  by  wliich  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two-thirds  of  all  the  mem- 
bers elected  to  that  House,  it  shall  be  a  law ;  but  in  such 
cases  the  vote  of  both  Houses  shall  be  determined  by  yeas  and 


48  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

nays,  and  the  names  of  the  members  voting  for  or  against  the 
bill  shall  be  entered  on  the  journal  of  each  House  respectively. 
If  any  bill  shall  not  be  returned  by  the  Governor  within  ten 
days  (Sunday  excepted)  after  it  shall  have  been  presented  to 
him,  it  shall  be  a  law  in  like  manner  as  if  he  had  signed  it, 
unless  the  General  Assembly,  by  adjournment,  prevent  its  re- 
turn ;  in  wliich  case  it  shall  be  a  law,  unless  sent  back  within 
three  days  after  their  next  session. 

Art.  54. — Every  order,  resolution  or  vote  to  which  the 
concuiTcnce  of  both  Houses  may  be  necessary,  except  on  a 
question  of  adjournment,  shall  be  presented  to  the  Governor, 
and  before  it  shall  take  effect,  be  approved  by  him,  or,  being 
disapproved,  shall  be  repassed  by  two-thirds  of  the  members 
elected  to  each  House  of  the  General  Assembly. 

Art.  55. — There  shall  be  a  Secretary  of  State  who  shall 
hold  liis  office  during  the  time  for  wliich  the  Governor  shall 
have  been  elected.  The  records  of  the  State  shall  be  kept  and 
preserved  in  the  office  of  the  Secretary  ;  he  shall  keep  a  fair 
register  of  the  official  acts  and  proceedings  of  the  Governor, 
and  when  necessary,  shall  attest  them.  He  shall,  when  requir- 
ed, lay  the  said  register,  and  all  papers,  minutes  and  vouchers 
relative  to  his  office,  before  either  House  of  the  General  As- 
sembly, and  shall  perform  such  other  duties  as  may  be  enjoined 
on  him  by  law. 

Art.  56. — There  shall  be  a  Treasurer  of  the  State  who  shall 
hold  his  office  during  the  term  of  two  years. 

Art.  57. — The  Secretary  of  State  and  Treasurer  of  State, 
shall  be  elected  by  the  qualified  electors  of  the  State,  And  in 
case  of  any  vacancies  caused  by  the  death,  resignation  or  absence 
of  the  Treasurer  or  Secretary  of  State,  the  Governor  shall 
order  an  election,  to  fill  said  vacancy. 

Art.  58. — All  commissions  shall  be  in  the  name  and  by  the 
authority  of  the  State  of  Louisiana,  and  shall  be;  sealed  with 
the  State  seal  and  signed  by  the  Governor. 

Art.  59. — The  free  wliite  men  of  the  State  shall  be  armed 
and  disciiDlined  for  its  defence  ;    but  those  who  belong  to  reh- 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  49 

gioiis  societies,  whose  tenets  forbid  tliem  to  carry  arms,  shall  not 
be  compelled  so  to  do,  but  shall  pay  an  equivalent  for  personal 
ser\dces. 

Art.  60. — The  Militia  of  the  State  shall  be  organized  in 
such  manner  as  may  hereafter  be  deemed  most  expedient  by 
the  Legislature, 


TITLE   IV. 

JUDICIARY    DEPARTMENT. 

Art.  61. — The  Judiciary  power  shall  be  vested  in  a  Supreme 
Court,  in  such  Inferior  Courts  as  the  Legislature  may,  from 
time  to  time,  order  and  establish,  and  in  Justices  of  the  Peace. 

Art.  62. — The  Supreme  Court,  except  in  the  cases  herein- 
after provided,  shall  have  appellate  jurisdiction  only  ;  which  ju- 
risdiction shall  extend  to  all  cases  when  the  matter  in  disi)uto 
shall  exceed  three  hundred  dollars  ;  to  all  cases  in  which  the  con- 
stitutionality or  legality  of  any  tax,  toll,  or  impost  whatsoever, 
or  of  any  fine,  forfeiture  or  penalty  imposed  by  a  municipal  cor- 
poration, shall  be  in  contestation  ;  and  to  all  criminal  cases  on 
questions  of  law  alone,  whenever  the  offence  charged,  is  pun- 
ishable Avith  death,  or  imprisonment  at  hard  labor,  or  when  a 
fine  exceeding  three  hundred  dollars  is  actually  imposed.  The 
Legislature  shall  have  power  to  restrict  the  jurisdiction  of  the 
Supreme  Court  in  civil  cases  to  questions  of  law  only. 

Art.  63. — The  Supreme  Court  shall  be  composed  of  one 
Chief  Justice  and  four  Associate  Justices,  a  majority  of  whom 
shall  constitute  a  quorum.  The  Chief  Justice  shall  receive  a 
salary  of  six  thousand  dollars,  and  each  of  the  Associate 
Judges  a  salary  of  five  thousand  five  hundred  dollars  annually, 
until  otherwise  provided  by  Law.  The  Court  shall  appoint  its 
own  Clerks  ;  the  Judges  shall  be  elected  for  the  term  of  ten 
years. 

Art.  64. — The  Chief  Justice  shall  be  elected  by  the  qualified 
electors  of  the  State.  The  Legislatm-e  shall  divide  the  State 
4 


50  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

into  four  Districts,  and  the  qualified  electors  of  each  District, 
shall  elect  one  of  the  Associate  Justices.  The  State  shall  be 
divided  into  the  following  Districts  until  the  Legislature  shall 
otherwise  direct. 

FIRST    DISTKICT. 

The  parishes  of  Plaquemines,  St.  Bernard,  that  portion  of 
the  Parish  of  Orleans  on  the  right  bank  of  the  Mississippi 
Eiver,  and  that  portion  of  the  city  of  New  Orleans  which  lies 
below  the  line  extending  from  the  Kiver  Mississippi,  along  the 
middle  of  Julia  street  until  it  strikes  the  New  Orleans  Canal, 
and  thence  down  said  Canal  to  the  Lake. 

SECOND    DISTRICT. 

That  portion  of  the  City  of  New  Orleans  wliich  is  situated 
above  the  line  extending  along  the  middle  of  Julia  street  until 
it  strikes  the  New  Orleans  Canal,  and  thence  down  said  Canal 
to  the  Lake,  and  the  Parishes  of  Jciferson,  St.  John  the  Bap- 
tist, St.  Charles,  St.  James,  Ascension,  Assumption,  Lafourche 
Interior,  Terrebonne,  West  Baton  Kouge  and  IberviUe. 

THIRD    DISTRICT. 

The  Parishes  of  St.  Tammany,  Washington,  Livingston, 
St.  Helena,  East  Baton  Rouge,  East  Feliciana,  West  Felici- 
ana, Point  Coupee,  Avoyelles,  Tensas,  Concordia,  Lafayette, 
VermiUion,  St.  Mary,  St.  Martin  and  St.  Landiy. 

FOURTH   DISTRICT. 

The  Parishes  of  Calcasieu,  Rapides,  Sabine,  Natchitoches, 
De  Soto,  Caddo,  Bossier,  Claiborne,  Bienville,  Caldwell,  Union, 
Ouacliita,  Morehouse,  Jackson,  Franldin,  Catahoula,  Madison, 
Carroll  and  Winn. 

Art.  65. — The  office  of  one  of  the  Associate  Justices  shall 
be  vacated  at  the  expiration  of  the  second  year,  of  another  at 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  51 

the  expiration  of  the  fourth  year,  of  a  third  at  the  expiration 
of  the  sixth  year,  and  of  the  fourth  at  the  expiration  of  tlie 
eighth  year — so  that  one  of  the  Judges  of  the  Supreme  Court 
shall  be  elected  every  second  year. 

Art.  66. — The  Secretary  of  State,  on  receiving  the  official 
returns  of  the  first  election,  shall  proceed  immediately,  in  the 
presence  and  with  the  assistance  of  two  Justices  of  the  Peace, 
to  determine  by  lot  among  the  four  candidates  having  the 
highest  number  of  votes  in  the  respective  districts,  which  of 
the  Associate  Justices  elect  shall  serve  for  the  term  of  two 
years,  which  shall  serve  for  the  term  of  four  years,  wliich  for 
the  term  of  six  years,  and  which  for  the  term  of  eight  years, 
and  the  Governor  shall  issue  commissions  accordingly. 

Art.  67. — Any  vacancy  that  may  occur  in  the  Supreme 
Court  from  resignation  or  otherwise,  shall  be  filled  by  election 
for  the  remainder  of  the  unexpired  term,  but  if  such  remain- 
der do  not  exceed  one  year,  the  vacancy  shall  be  filled  by 
Executive  appointment. 

Art.  68. — The  Supreme  Court  shall  hold  its  Sessions  in 
New  Orleans  from  the  first  Monday  of  the  month  of  Novem- 
ber to  the  end  of  the  month  of  June  inclusive.  The  Lcgisla- 
tm-e  shall  have  power  to  fix  the  sessions  elsewhere  during  the 
rest  of  the  year ;  until  otherwise  provided,  the  sessions  shall 
be  held  as  heretofore. 

Art.  69. — The  Supreme  Court  and  each  of  the  Judges 
thereof  shall  have  power  to  issue  writs  of  "  habeas  corpus,"  at 
the  instance  of  all  persons  in  actual  custody  under  process  in 
all  cases  in  which  they  may  have  appellate  jurisdiction. 

j^RT.  70. — No  judgment  shall  be  rendered  by  the  Supreme 
Court  without  the  concurrence  of  a  majority  of  the  Judges 
comprising  the  Court.  Whenever  a  majority  cannot  agree,  in 
conseq[uence  of  the  recusation  of  any  member  or  members  of 
the  Court,  the  Judges  not  recused,  shall  have  power  to  call 
upon  any  Judge  or  Judges  of  the  Inferior  Courts,  whose  duty 
it  shall  be,  when  so  called  upon,  to  sit  in  the  place  of  the 
Judges  recused,  and  to  aid  in  determining  the  case. 


52  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

Art.  71. — All  Judges,  by  Aqrtiie  of  their  office,  shall  be  con- 
servators of  the  peace  throughout  the  State.  The  style  of  all 
process  shall  be  "  The  State  of  Louisiana."  All  prosecutions 
shall  be  carried  on  in  the  name,  and  by  authority  of  the  State 
of  Louisiana,  and  conclude  against  the  peace  and  dignity  of 
the  same. 

Art.  72. — The  Judges  of  all  Courts  within  the  State  shall, 
as  often  as  it  may  be  possible  so  to  do,  in  every  definitive  judg- 
ment, refer  to  the  particular  law  in  \drtue  of  which  such  judg- 
ment may  be  rendered,  and  in  all  cases  adduce  the  reasons  on 
which  their  judgment  is  founded. 

Art.  73. — The  Judges  of  all  Courts  shall  be  Hable  to 
impeachment,  but  for  any  reasonable  cause,  which  shall  not  be 
sufficient  ground  for  impeachment,  the  Governor  shall  remove 
any  of  them  on  the  address  of  three-fourths  of  the  members 
present  of  each  House  of  the  General  Assembly.  In  every 
such  case,  the  cause  or  causes  for  which  such  removal  may  be 
required,  shall  be  stated  at  length  in  the  address,  and  inserted 
in  the  Journal  of  each  House. 

Art.  74. — There  shall  be  an  Attorney-General  for  the  State, 
and  as  many  District  Attorneys  as  may  be  hereafter  found 
necessaiy.  They  shall  hold  their  offices  for  four  years,  their 
duties  shall  be  determined  by  law. 

Art.  75. — The  Judges,  both  of  ithe  Supreme  and  Inferior 
Courts,  shall,  at  stated  times,  receive  a  salary,  which  shall  not 
be  diminished  during  their  continuance  in  office  ;  and  they  are 
prohibited  from  receiving  any  fees  of  office,  or  other  compensa- 
tion than  their  salaries  for  any  civil  duties  performed  by  them. 

Art.  76. — The  Legislature  shaU  have  power  to  vest  in  Clerks 
of  Courts  authority  to  grant  such  orders  and  do  such  acts  as 
may  be  deemed  necessary  for  the  furtherance  of  the  adminis- 
tration of  justice,  and  in  all  cases  the  powers  thus  granted  shall 
be  specified  and  determined. 

Art,  77. — The  Judges  of  the  several  Inferior  Com-ts  shall 
have  power  to  remove  the  Clerks  thereof,  for  breach  of  good  beha- 
vior ;  subject  in  all  cases  to  an  appeal  to  the  Supreme  Court. 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  53 

Art.  78. — ^The  Jurisdiction  of  Justices  of  the  Peace  shall  he 
limited  in  civil  cases  to  cases  where  the  matter  in  dispute  does 
not  exceed  one  hundred  dollars,  exclusive  of  interest,  suhjcct  to 
appeal  in  such  cases  as  shall  he  provided  for  hy  law.  They 
shall  be  elected  by  the  qualified  electors  of  each  Parish,  Dis- 
trict or  Ward,  for  the  term  of  two  years  in  such  manner,  and 
shall  have  such  criminal  jurisdiction  as  shall  be  provided  by 
law. 

Art.  79. — Clerks  of  the  Inferior  Courts  in  this  State  shall 
be  elected  for  the  term  of  four  years,  and  should  a  vacancy 
occur  subsequent  to  an  election,  it  shall  be  filled  by  the  Judge 
of  the  Court  in  which  such  vacancy  exists,  and  tlic  person  so 
appointed  shall  hold  his  office  until  the  next  general  election. 

Art.  80. — A  Sheriff  and  a  Coroner  shall  be  elected  in  each 
Parish  by  the  qualified  voters  thereof,  who  shall  hold  their 
office  for  the  term  of  two  years,  unless  sooner  removed.  The 
Legislature  shall  have  the  power  to  increase  the  number  of 
Sheriffs  in  any  Parish.  Should  a  vacancy  occur  m  either  of 
these  offices  subsequent  to  an  election,  it  shall  be  filled  by  the 
Governor  ;  and  the  person  so  appointed  shall  continue  in  office 
until  his  successor  shall  be  elected  and  qualified. 

Art.  81. — The  Judges  of  the  several  Inferior  Courts  shall 
be  elected  by  the  duly  qualified  voters  of  their  respective  Dis- 
tricts or  Parishes. 

Art.  82. — It  shall  be  the  duty  of  the  Legislature  to  fix  the 
time  for  holding  elections  for  all  Judges  at  a  time  wliich  shaU 
be  different  from  that  fixed  for  all  other  elections. 

Art.  83. — The  Attorney-General  shall  be  elected  by  the 
qualified  voters  of  the  State,  and  the  District  Attorneys  by 
the  qualified  voters  of  each  District  on  the  day  of  the  election 
for  Governor  of  the  State. 

Art.  84. — The  Legislature  may  determine  the  mode  of 
fiUing  vacancies  in  the  offices  of  the  Inferior  Judges,  Attorney- 
General,  District  Attorneys,  and  all  other  officers  not  otherwise 
provided  for  in  this  Constitution. 


54  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

TITLE  V. 

IMPEACHMENT. 

Art.  85. — The  power  of  impeachment  shall  be  vested  in  the 
House  of  Representatives. 

Art.  86. — Impeachments  of  the  Governor,  Lieutenant  Gov- 
ernor, Attorney-General,  Secretary  of  State,  State  Treasurer, 
and  of  the  Judges  of  the  Inferior  Courts,  Justices  of  the 
Peace  excepted,  shall  be  tried  by  the  Senate  ;  tlie  Chief  Jus- 
tice of  the  Supreme  Court,  or  the  senior  Judge  thereof,  shall 
preside  during  the  trial  of  such  impeachment.  Impeachments 
of  the  Judges  of  the  Supreme  Court  shall  be  tried  by  the 
Senate.  When  sitting  as  a  Court  of  Impeachment,  the  Sena- 
tors shall  be  upon  oath  or  affirmation,  and  no  person  shall  be 
con^dcted  without  the  concurrence  of  two-thirds  of  the  Senators 
present. 

Art.  87. — Judgments  in  cases  of  impeachment  shall  extend 
only  to  removal  from  office  and  disqualification  from  holding 
any  office  of  honor,  trust  or  profit  under  the  State  :  but  the 
convicted  parties  shall,  nevertheless,  be  subject  to  indictment, 
trial  and  punishment  according  to  law. 

Art.  88. — All  officers  against  whom  articles  of  impeach- 
ment may  be  preferred,  shall  be  suspended  from  the  exercise 
of  their  functions  during  the  i^endency  of  such  impeachment : 
the  appointing  power  may  make  a  provisional  appointment  to 
replace  any  suspendeid  officer  until  the  decision  of  the  impeach- 
ment. 

Art.  89. — The  Legislature  shall  provide  by  law  for  the  trial, 
punishment  and  removal  from  office  of  all  other  officers  of  the 
State  by  indictment  or  otherwise. 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  55 

TITLE  VI. 

GENERAL   PROVISIONS. 

Art.  90. — Members  of  the  General  Assembly,  and  all  offi- 
cers before  they  enter  upon  the  duties  of  their  offices,  shall 
take  the  following  oath  or  affirmation  : 

"  I,  (A.  B.)  do  solemnly  swear  (or  affirm)  that  I  will  sup- 
port the  Constitution  of  the  United  States  and  of  this  State, 
and  that  I  Avill  faithfully  and  impartially  discharge  and  perform 

all  the  duties  incunil)ent  on  me  as ,  according  to  the  best 

of  my  abihties  and  understanding,  agreeably  to  the  Constitu- 
tion and  laws  of  the  United  States,  and  of  tliis  State  ;  and  I 
do  further  solemnly  swear  (or  affirm)  that  since  the  adoption 
of  the  })resent  Constitution,  I,  being  a  citizen  of  this  State, 
have  not  fought  a  duel  wdth  deadly  weapons  witliin  this  State, 
nor  out  of  it,  Anth  a  citizen  of  this  State,  nor  have  I  sent  or 
accepted  a  challenge  to  fight  a  duel  with  deadly  weapons  with 
a  citizen  of  tliis  State,  nor  have  I  acted  as  second  in  carrying 
a  challenge,  or  aided,  advised  or  assisted  any  person  thus  of- 
fending, so  help  me  God." 

Art.  91. — Treason  against  the  State  shall  consist  only  in 
levying  war  against  it,  or  in  adhering  to  its  enemies,  gi^'ing 
them  aid  and  comfort.  No  person  shall  be  convicted  of  trea- 
son, unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  liis  own  confession  in  open  court. 

Art.  92. — Every  person  shall  be  disqualified  from  holding 
any  office  of  trust  or  profit  in  this  State,  who  shall  have  been 
convicted  of  having  given,  or  offered  a  bribe  to  procure  liis 
election  or  appointment. 

Art.  93. — Laws  sliall  be  made  to  exclude  from  office,  and 
from  the  right  of  suffrage,  those  who  shall  hereafter  be  con- 
victed of  bribery,  perjury,  forgery,  or  other  high  crimes  or  mis- 
demeanors. The  privilege  of  free  suffrage  shall  be  sui)ported 
by  laws  reg*ulating  elections,  and  proliibiting  under  adequate 


56  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

penalties,  all  undue  influence  thereon,  from  power,  bribery, 
tumult  or  other  improper  practice. 

Art.  94. — No  money  shall  be  drawn  from  the  Treasury 
but  in  pursuance  of  specific  appropriation  made  by  law,  nor 
shall  any  appropriation  of  money  be  made  for  a  longer  term 
than  two  years.  A  regular  statement  and  account  of  the  re- 
ceipts and  expenditures  of  all  public  moneys  shall  be  pubhshed 
annually,  in  such  manner  as  shall  be  prescribed  by  law. 

Art.  95. — It  shall  be  the  duty  of  the  General  Assembly 
to  pass  such  laws  as  may  be  proper  and  necessary  to  decide 
differences  by  arbitration. 

Art.  96. — All  civil  officers  for  the  State  at  large  shall  re- 
side within  the  State,  and  all  district  or  parish  officers,  within 
their  districts  or  parishes,  and  shall  keep  their  offices  at  such 
places  therein  as  may  be  required  by  law. 

Art.  97. — All  civil  officers,  except  the  Governor  and 
Judges  of  the  Sujireme  and  Inferior  Courts,  shall  be  remov- 
able by  an  address  of  a  majority  of  the  members  of  both 
Houses,  except  those  the  removal  of  whom  has  been  otherAvise 
provided  by  this  Constitution. 

Art.  98. — In  all  elections  by  the  people  the  vote  shall  be 
by  ballot,  and  in  all  elections  by  the  Senate  and  House  of 
Kepresentatives,  jointly  or  separately,  the  vote  shall  be  given 
viva  voce. 

Art.  99. — No  member  of  Congress,  nor  person  holding  or 
exercising  any  office  of  trust  or  profit  under  the  United  States, 
or  either  of  them,  or  any  foreign  power,  shall  be  ehgible  as  a 
member  of  the  General  Assembly,  or  hold  or  exercise  any 
office  of  trust  or  profit  under  the  State. 

Art.  100. — The  laws,  pubHc  records,  and  the  judicial  and 
legislative  written  proceedings  of  the  State  shall  be  promul- 
gated, preserved  and  conducted  in  the  language  in  which  the 
Constitution  of  the  United  States  is  written. 

Art.  101.— The  Secretary  of  the  Senate  and  Clerk  of  the 
House  of  Representatives  shall  be  conversant  with  the  French 
and  Enghsh  languages,  and  members  may  address  either  House 
in  the  French  or  English  language. 


CONSTITUTION    OF   THE   STATE   OF   LOUISIANA.  57 

Art.  102. — No  power  of  suspending  tlic  laws  of  this  State 
shall  be  exercised,  unless  by  the  Legislature  or  by  its  au- 
thority. 

Art.  103. — Prosecutions  shall  be  by  indictment  or  infor- 
mation. The  accused  shall  have  a  speedy  public  trial  by  an 
impartial  jury  of  the  vicinage  :  he  shall  not  be  compelled  to 
give  evidence  against  himself ;  he  shall  have  the  right  of  being 
heard  by  himself  or  counsel :  he  shall  have  the  right  of  meet- 
ing the  witnesses  face  to  face,  and  shall  have  compulsory  pro- 
cess for  obtaining  Avitncsses  in  his  favor. 

Art.  104. — All  prisoners  shall  be  bailable  by  sufficient 
sureties,  unless  for  capital  offences,  where  the  proof  is  evident 
or  presumption  great,  or,  unless  after  conviction  for  any  offence 
or  crime  punishable  with  death  or  imprisonment  at  hard  labor. 
The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  case  of  rebellion  or  invasion  the  pubHc 
safety  may  require  it. 

Art.  105. — No  ex  post  facto  law,  nor  any  law  impairing 
the  obligation  of  contracts,  shall  be  passed,  nor  vested  rights 
be  divested,  unless  for  purposes  of  public  utility,  and  for  ade- 
quate compensation  previously  made. 

Art.  106. — The  press  shall  be  free.  Every  citizen  may 
freely  speak,  write  and  publish  his  sentiments  on  all  subjects ; 
being  responsible  for  an  abuse  of  tliis  liberty. 

Art.  107. — The  seat  of  Government  shall  be  and  remain 
at  Baton  Kouge,  and  shall  not  be  removed  without  the  consent 
of  three-fourths  of  both  Houses   of  the  General  Assembly. 

Art.  108. — The  State  shall  not  subscribe  for  the  stock 
of,  nor  make  a  loan  to,  nor  pledge  its  faith  for  the  benefit  of 
any  corporation  or  joint-stock  company,  created  or  estabhshcd 
for  banking  pm-poses,  nor  for  other  purposes  than  those  de- 
scribed in  the  following  article. 

Art.  109. — The  Legislature  shall  have  power  to  grant  aid 
to  companies  or  associations  of  individuals,  fonned  for  the  ex- 
clusive purpose  of  making  works  of  internal  improvement, 
wholly  or  partially  mtliin  the  State,  to  the  extent  only  of 


58  CONSTITUTION    OF   THE    STATE   OF    LOUISIANA. 

one-fifth  of  the  capital  of  such  companies,  by  subscription  of 
stock  or  loan  of  money  or  public  bonds  ;  but  any  aid  thus 
granted  shall  be  paid  to  the  company  only  in  the  same  propor- 
tion as  the  remainder  of  the  capital  shall  be  actually  paid  in 
by  the  stockholders  of  the  company,  and,  in  case  of  loan,  such 
adequate  security  shall  be  required,  as  to  the  Legislature  may 
seem  proper.  No  cori:)oration  or  individual  association  receiv- 
ing the  aid  of  the  State,  as  herein  provided,  shall  possess 
banking  or  discounting  pri^dleges. 

Art.  110. — No  liabihty  shall  be  contracted  by  the  State 
as  above-mentioned,  unless  the  same  be  authorized  by  some 
law  for  some  single  object  or  work  to  be  distinctly  specified 
therein,  which  shall  be  passed  by  a  majority  of  the  members 
elected  to  both  Houses  of  the  General  Assembly,  and  the  ag- 
gregate amount  of  debts  and  liabilities  incurred  under  this  and 
the  preceding  article  shall  never,  at  any  one  time,  exceed  eight 
mniions  of  dollars. 

Art.  111. — Whenever  the  Legislature  shall  contract  a 
debt  exceeding  in  amount  the  sum  of  one  hundred  thousand 
dollars,  unless  in  case  of  war  to  repel  invasion  or  suppress  in- 
surrection, they  shall,  in  the  law  creating  the  debt,  provide 
adequate  ways  and  means  for  the  j)ayment  of  the  current  in- 
terest and  of  the  principal  when  the  same  shall  become  due. 
And  the  said  law  shall  be  irre2oealable  until  princii^al  and  in- 
terest are  fully  paid  and  discharged,  or  unless  the  repeahng 
law  contains  some  other  adequate  provision  for  the  payment 
of  the  principal  and  interest  of  the  debt. 

Art.  112. — The  Legislature  shall  provide  by  law  for  a 
change  of  venue  in  civil  and  criminal  cases. 

Art.  113. — No  Lottery  shall  be  authorized  by  this  State, 
and  the  buying  or  selling  of  lottery  tickets  within  the  State  is 
prohibited. 

Art,  114, — No  divorce  shall  be  granted  by  the  Legis- 
lature, 

Art.  115. — Every  law  enacted  by  the  Legislature  shall 
embrace  but  one  object,  and  that  shall  be  exj)ressed  in  the 
title. 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  59 

Art.  116. — No  law  shall  be  revived  or  amended  by  refer- 
ence to  its  title  ;  but  in  sucli  case,  the  act  revived,  or  section 
amended,  shall  be  re-enacted  and  published  at  length. 

Art.  117. — The  Legislature  shall  never  adopt  any  system 
or  code  of  laws,  by  general  reference  to  such  system  or  code  of 
laws,  but  in  all  cases  shall  specify  the  several  provisions  of  the 
laws  it  may  enact. 

Art.  118. — Corporations  with  banking  or  discounting  priv- 
ileges may  be  cither  created  by  special  acts,  or  formed  under 
general  laws ;  but  the  Legislature  shall,  in  both  cases,  provide 
for  the  registry  of  aU  bills  or  notes  issued  or  put  in  circulation 
as  money,  and  shall  require  ample  security  for  the  redemption 
of  the  same  in  specie. 

Art.  119. — The  Legislature  shall  have  no  power  to  pass 
any  law  sanctioning  in  any  manner,  directly  or  indirectly,  the 
suspension  of  specie  i:)ayments,  by  any  person,  association  or 
corporation  issuing  bank-notes  of  any  description. 

Art.  120. — In  case  of  insolvency  of  any  bank  or  banking 
association,  the  bill  holders  thereof  shall  be  entitled  to  pre- 
ference in  payment  over  all  other  creditors  of  such  bank  or 
association. 

Art.  121. — The  Legislature  shall  have  power  to  pass  such 
laws  as  it  may  deem  expedient  for  the  relief  or  revival  of  the 
Citizens'  Bank  of  Louisiana,  and  the  acts  already  passed  for 
the  same  purpose  are  ratified  and  confirmed,  provided  that  the 
bank  is  subject  to  the  restrictions  contained  in  articles  119 
and  120  of  this  Constitution. 

Art.  122. — No  person  shall  hold  or  exercise,  at  tlie  same 
time,  more  than  one  civil  office  of  emolument,  except  that  of 
Justice  of  the  Peace. 

Art.  123. — Taxation  shall  be  equal  and  uniform  through- 
out the  State.  All  property  on  which  taxes  may  be  levied  in 
this  State  shall  be  taxed  in  iiroportion  to  its  value,  to  be  as- 
certained as  directed  by  law.  No  one  species  of  projjerty 
shall  be  taxed  higher  than  another  species  of  property  of 
equal  value,  on  which  taxes  shall  be  levied  ;  the  Legislature 


60  CONSTITUTION   OF   THE    STATE   OF   LOUISIANA. 

shall  have  power  to  Icvj^  an  income  tax,  and  to  tax  all  persons 
pursning  any  occupation,  trade  or  profession. 

Art.  124. — The  citizens  of  the  city  of  New  Orleans  shall 
have  the  right  of  appointing  the  several  public  officers  neces- 
sary for  the  administration  of  the  police  of  the  said  city,  pur- 
suant to  the  mode  of  elections  which  shall  be  prescribed  by 
the  Legislature  ;  Provided,  that  the  Mayor  and  Recorders 
shall  be  ineligible  to  a  seat  in  the  General  Assembly  ;  and  the 
Mayor,  Recorders,  Aldermen  and  Assistant  Aldermen  shall  be 
commissioned  by  the  Governor  as  Justices  of  the  Peace,  and 
the  Legislature  may  vest  in  them  such  criminal  jurisdiction  as 
may  be  necessary  for  the  j)iinishment  of  minor  crimes  and 
offences,  and  as  the  poHce  and  good  order  of  said  city  may  re- 
quire. 

Art.  125. — The  Legislature  may  provide  by  law  in  what 
case  officers  shall  continue  to  perform  the  duties  of  their 
offices  until  their  successors  shall  have  been  inducted  into 
office. 

Art.  126. — Any  citizen  of  this  State  who  shall,  after  the 
adoption  of  tliis  Constitution,  fight  a  duel  with  deadly  weapons 
with  a  citizen  of  this  State,  or  send  or  accept  a  challenge  to 
fight  a  duel  with  deadly  weapons,  either  within  this  State  or 
out  of  it,  with  a  citizen  of  this  State,  or  who  shall  act  as  se- 
cond, or  knowingly  aid  or  assist  in  any  manner  those  thus  of- 
fending, shall  be  deprived  of  holding  any  office  of  trust  or  pro- 
fit, and  of  enjoying  the  right  of  suffrage  under  this  Constitu- 
tion ;  and  the  office  of  any  State  officer,  member  of  the  Gen- 
eral Assembly,  or  of  any  other  person  holding  office  of  profit 
or  trust  under  this  Constitution,  and  the  laws  made  in  pursu- 
ance thereof  shall  be,  ipso  facto  vacated  by  the  fact  of  any 
such  person  committing  the  offence  mentioned  in  this  article, 
and  the  Legislature  shall  provide  by  law  for  the  ascertaining 
and  declaration  of  such  forfeiture. 

Art.  127. — The  Legislature  shall  have  power  to  extend 

this  Constitution  and  the  jurisdiction  of  this  State  over  any 

*  territory  acquired  by  compact  with  any  State,  oi  with  the 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  61 

United  States,  the  same  being  done  by  the  consent  of  the 
United  States. 

Art.  128. — None  of  the  lands  granted  by  Congress  to  the 
State  of  Louisiana  for  aiding  it  in  constructing  the  necessary 
levees  and  drains,  to  reclaim  the  swamp  and  overflowed  lands 
in  this  State,  shall  be  diverted  from  the  purposes  for  wliich 
they  were  granted. 

Art.  129. — The  Constitution  and  Laws  of  this  State  shall 
be  promulgated  in  the  English  and  French  languages. 

TITLE   VIL 

INTERNAL   IMPROVEMENTS. 

Art.  130. — There  shall  be  a  Board  of  Public  Works  to 
consist  of  four  Commissioners.  The  State  shall  be  divided  by 
the  Legislature  into  four  districts,  containing  as  nearly  as  may 
be  an  equal  number  of  voters,  and  one  Commissioner  shaU  be 
elected  in  each  district  by  the  legal  voters  thereof  for  the  term 
of  four  years  ;  but,  of  the  fii'st  elected,  two,  to  be  designated 
by  lot,  shall  remain  in  office  for  tAvo  years  only. 

Art.  131. — The  G-eneral  Assembly  at  its  first  session  after 
the  adoption  of  this  Constitution,  shall  provide  for  the  election 
and  compensation  of  the  Commissioners  and  the  organization 
of  the  Board.  The  Commissioners  first  elected  shall  assemble 
on  a  day  to  be  appointed  by  law,  and  decide  by  lot  the  order 
in  winch  their  terms  of  service  shall  expire.     . 

Art.  132. — The  Commissioners  shall  exercise  a  diligent 
and  feithful  supervision  of  all  public  works,  in  which  the  State 
may  be  interested,  except  those  made  by  joint  stock  companies. 
They  shall  communicate  to  the  General  Assembly,  from  time 
to  time,  their  \dews  concerning  the  same,  and  recommend 
such  measures  as  they  may  deem  necessary,  in  order  to 
employ  to  the  best  advantage  and  for  the  purposes  for  which 
they  were  granted,  the  swamps  and  overflowed  lands,  convey- 
ed by  the  United  States  to  this  State.     They  shall  appoint  all 


62  CONSTITUTION    OF   THE   STATE    OF   LOUISIANA. 

officers  engaged  on  the  public  works,  and  shall  perform  such 
other  duties  as  may  be  prescribed  by  law. 

Art.  133. — The  Commissioners  may  be  removed  by  the 
concurrent  vote  of  a  majority  of  all  the  members  elected  to 
each  House  of  the  General  Assembly  ;  but  the  cause  of  the 
removal  shall  be  entered  on  the  Joiu-nal  of  each  House. 

Art.  134.-^The  General  Assembly  shall  have  power,  by  a 
vote  of  three-fifths  of  the  members  elected  to  each  House,  to 
abolish  said  Board,  whenever  in  their  opinion  a  Board  of  Pub- 
lic Works  shall  no  longer  be  necessary. 


.    TITLE  YIII. 

PUBLIC    EDUCATION. 

Art.  135. — There  shall  be  elected  a  Superintendent  of 
Public  Education,  who  shaU  hold  liis  office  for  the  term  of 
two  years.  His  duties  shall  be  prescribed  by  law,  and  he 
shaU  receive  such  compensation  as  the  Legislature  may  direct ; 
provided,  that  the  General  Assembly  shaU  have  power  by  a 
vote  of  the  majority  of  the  members  elected  to  both  Houses, 
to  abolish  the  said  office  of  Superintendent  of  PubHc  Educa- 
tion whenever  in  theu'  opinion  said  office  shall  be  no  longer 
necessary. 

Art.  136. — The  General  Assembly  shall  establish  free 
pubhc  schools  tliroughout  the  State,  and  shall  provide  for  their 
support  by  general  taxation  on  property  or  otherwise  ;  and  all 
moneys  so  raised  or  provided  shall  be  distributed  to  each  Par- 
ish in  proportion  to  the  number  of  free  white  children  between 
such  ages  as  shall  be  fij?:ed  by  the  General  Assembly. 

Art.  137. — The  proceeds  of  all  lands  heretofore  granted 
by  the  United  States  to  this  State  for  the  use  or  support  of 
schools,  and  of  aU  lands  which  may  hereafter  be  granted  or 
bequeathed  to  the  State,  and  not  expressly  granted  or  be- 
queathed for  any  other  purpose,  which  hereafter  may  be  dis- 


CONSTITUTION    OF    THE    STATE    OF    LOUISIANA.  63 

posed  of  by  the  State,  and  the  j)rocceds  of  the  estates  of 
deceased  persons,  to  which  the  State  may  become  entitled  by 
law,  shall  be  held  by  the  State  as  a  loan,  and  shall  be  and  re- 
main a  perpetual  fund,  on  which  the  State  shall  pay  an  annual 
interest  of  six  per  cent.  ;  which  interest,  together  with  the  in- 
terest of  the  trust  funds  deposited  with  this  State  by  the 
United  States,  under  the  act  of  Congress  approved  June  23, 
1836,  and  all  the  rents  of  the  unsold  lands  shall  be  appro- 
priated to  the  support  of  such  schools,  and  tliis  appropriation 
shall  remain  inviolable. 

Art.  138. — All  moneys  arising  from  the  sales  which  have 
been  or  may  hereafter  be  made  of  any  lands  heretofore  granted 
by  the  United  States  to  this  State,  for  the  use  of  a  seminary 
of  learning,  and  from  any  kind  of  donation  that  may  hereafter 
be  made  for  that  purpose,  shall  be  and  remain  a  perpetual 
fund,  the  interest  of  which,  at  six  per  cent,  per  annum,  shall 
be  appropriated  to  the  support  of  a  seminary  of  learning  for 
the  promotion  of  Hterature  and  the  arts  and  sciences,  and  no 
law  shall  ever  be  made  diverting  said  fund  to  any  other  use 
than  to  the  estabhshment  and  improvement  of  said  scminaiy 
of  learning. 

Art.  139. — The  University  of  Louisiana  in  New  Orleans 
as  now  established  shall  be  maintained. 

Art.  140. — The  Legislature  sh^ll  have  power  to  pass  such 
laws  as  may  be  necessar}^  for  the  further  regulation  of  the  Uni- 
versity, and  for  the  promotion  of  Hterature  and  science  ;  but 
shall  be  under  no  obligation  to  contribute  to  the  support  of 
said  University  by  appropriations. 

TITLE  IX. 

MODE   OF    REVISING   THE   CONSTITUTION. 

Art.  141. — Any  amendment  or  amendments  to  this  Con- 
stitution may  be  proposed  in  the  Senate  or  House  of  Kepre- 
eentatives,  and  if  the  same  shaU  be  agreed  to  by  two-thirds 


64  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

of  the  nicnibers  elected  to  eacli  House,  such  proijosed  amend- 
ment or  amendments  shall  be  entered  on  their  journals,  uith 
the  yeas  and  nays  taken  thereun,  and  the  Secretary  of  State 
shall  cause  the  same  to  be  pubhshed,  three  months  l>ef(>rc  the 
next  general  election  fur  Hoprcsentativos  tif  the  State  Legisla- 
ture, in  at  least  one  newsi)a})er  in  French  and  English,  in  cvciy 
Parish  in  the  State  in  which  a  newspaper  shall  be  publLshed  ; 
and  such  proposed  amendment  or  amendments  shall  be  sub- 
mitted to  the  people  at  said  election  ;  and  if  a  majority  of  the 
Toters  at  said  election  shall  approve  and  ratify  such  amend- 
ment or  amendments,  the  same  shall  become  a  part  of  the 
Constitution.  If  more  than  one  amendment  be  submitted  at 
a  time,  they  shall  be  submitted  in  such  manner  and  form,  that 
the  peojde  may  vote  for  or  against  each  amendment  separately. 

TITLE  X. 

SCHEDULE. 

Art.  142. — The  Constitution  adopted  in  eighteen  hundred 
and  forty-five  is  declared  to  be  superseded  by  this  Constitu- 
tion, jmd  in  order  to  cany  the  same  into  eflect,  it  is  liereby 
declared  and  ordained  as  follows  : 

Art.  143. — AU  rights,  actions,  prosecutions,  claims  and 
contracts,  as  well  of  individuals  as  of  bodies  corj)oi"ate,  and  all 
laws  in  force  at  the  time  of  the  adoption  of  this  Constitution, 
and  not  inconsistent  therewith,  shall  continue  as  if  the  same 
had  not  been  adopted. 

Art.  144. — In  order  that  no  inconvenience  may  result  to 
the  pubhc  seiTice  from  the  taking  effect  of  tliis  Constitution, 
no  office  shall  be  su])erseded  thereby  ;  but  the  laws  of  the 
State  relative  to  the  duties  of  the  several  officers,  Executive, 
Judicial  and  MiUtary,  shall  remain  in  full  force,  though  the 
same  be  contrary  to  tliis  Constitution,  and  the  several  duties 
shall  be  performed  by  the  rcsi)cctive  officers  of  the  State,  ac- 
cording to  the  existing  laws,  until  the  organization  of  the  Gov- 


CONSITTUTION    OF   THE    STATE    OF   LOUISIANA.  65 

eminent  under  this  Constitution,  and  the  entering  into  office 
of  the  new  officers  to  be  appointed  under  said  Government, 
and  no  longer. 

Art.  145. — Appointments  to  office  by  the  Executive  under 
this  Constitution,  shall  be  made  by  the  Governor  to  be  elect- 
ed under  its  authority. 

Art.  146. — The  Legislature  shall  provide  for  the  removal 
of  aU  causes  now  pending  in  the  Supreme  Court  or  other 
Courts  of  the  State  under  the  Constitution  of  1845,  to  Courts 
created  by  or  under  this  Constitution. 

Art.  147. — The  time  of  service  of  all  officers  chosen  by 
the  peoj^le,  at  the  first  election  imder  this  Constitution,  shall 
terminate  as  though  the  election  had  been  holden  on  the  first 
Monday  of  November,  1851,  and  they  had  entered  on  the  dis- 
charge of  their  duties  at  the  time  designated  therein.  The 
first  class  Senators  designated  in  article  17,  shall  hold  their 
seats  until  the  day  of  the  closing  of  the  general  elections 
in  November,  1853,  and  the  second  class  until  the  day  of  the 
closing  of  the  general  elections  in  November,  1855. 

Art.  148. — The  first  election  for  Judges  of  the  Supreme 
Court  shall  be  held  on  the  first  Monday  of  April  next  (1853), 
and  they  shall  enter  into  office  on  the  first  ]\Ionday  of  May, 
1853. 

Art.  149. — The  first  term  of  service  of  the  District 
Attorneys  and  the  Clerks  of  the  Inferior  Courts  to  be  or- 
dered and  established  under  this  Constitution,  shall  be  reg- 
ulated by  the  term  of  service  of  the  first  Governor,  so  that  a 
new  election  for  these  officers  shaU  be  held  on  the  first  Mon- 
day of  November,  1855. 

TITLE  XL 

ORDINANCE. 

Art.  150. — Immediately  after  the  adjournment  of  the 
Convention,  the  Governor  slvdl  issue  his  Proclamation,  direct- 


6G  CONSTITUTION    OF    THE    STATE    OF    LOUISIANA. 

ing  the  several  officers  of  this  State  authorized  by  law  to  hold 
elections  for  members  of  the  General  Assembly,  to  open  and 
hold  a  jiull  in  every  Parish  of  the  State,  at  the  i)laccs  desig- 
nated by  law,  upon  the  first  Tuesday  of  November  next,  for 
the  purpose  of  takinjj;  tlie  sense  of  the  good  people  of  tliis 
State  in  regard  to  the  adoption  or  rejection  of  this  Constitu- 
tion ;  and  it  shall  be  the  duty  of  said  officers  to  receive  the 
votes  of  all  persons  entitled  to  vote  under  the  old  Constitu- 
tion and  under  this  Constitution.  Each  voter  shall  express 
his  opinion  by  depositing  in  a  separate  box,  kept  for  that  pur- 
pose, a  ticket,  whereon  shall  be  written  "  the  Constitution  ac- 
cepted," or  "  the  Constitution  rejected,"  or  some  such  words 
as  will  distinctly  convey  the  intention  of  the  voter.  At 
the  conclusion  of  said  election,  which  shall  be  conducted  in 
every  respect  as  the  general  State  election  is  now  conducted, 
the  Commissioners  designated  to  i)reside  over  the  s;une  shall 
carefully  examine  and  count  each  ballot  so  dej)osited,  and  shall 
forthwitli  make  due  returns  thereof  to  the  Secretary  of  State, 
in  conformity  to  tlie  provisions  of  the  existing  law  upon  the 
subject  of  elections. 

Art.  151. — Upon  the  receipt  of  the  said  returns,  or  on 
the  fifth  Monday  of  November,  if  the  returns  be  not  sooner 
received,  it  sluill  be  the  duty  of  the  Governor,  the  Secretary 
of  State,  the  Attorney-General  and  the  State  Treasmer,  in 
the  presence  of  all  sucli  persons  as  may  choose  to  attend,  to 
comi)are  the  votes  given  at  the  said  \)o\\  for  the  ratification 
and  rejection  of  this  Constitution,  and  if  it  shall  appear  from 
said  returns  that  a  majority  of  all  the  votes  given  is  for  rati- 
fying this  Constitution,  then  it  shall  be  the  duty  of  the  Gov- 
ernor to  make  proclamation  of  that  fact,  and  thenceforth  tliis 
Constitution  shall  be  ordained  and  established  as  the  Consti- 
tution of  the  State  of  Louisiana.  But  whether  this  Constitu- 
tion be  accepted  or  rejected,  it  shall  be  the  duty  of  the  Gov- 
ernor to  cause  to  be  published  in  the  official  paper  of  the  Con- 
vention the  result  of  the  polls,  showing  the  number  of  votes 
cast  in  each  Parish  for  and  aj^ainst  the  said  Constitution. 


CONSTITUTION    OF   THE   STATE   OF   LOUISIANA,  67 

Art.  152. — Should  this  Constitution  be  accepted  by  the 
people,  it  shall  also  be  the  duty  of  the  Governor  forthwith  to  is- 
sue his  proclamation,  declaring  the  present  Legislature,  elected 
under  the  old  Constitution,  to  be  dissolved,  and  directing  the 
several  officers  of  the  State  authorized  by  law  to  hold  ele.c- 
tions  for  members  of  the  General  Assembly,  to  hold  an  elec- 
tion, at  the  places  designated  by  law,  upon  the  fourth  Monday 
of  December  next,  for  Governor,  Lieutenant  Governor,  mem- 
bers of  the  General  Assekibly,  Secretary  of  State,  Attorney- 
General,  Treasurer  and  Superintendent  of  Public  Education  ; 
and  the  said  election  shall  be  conducted  and  the  returns  there- 
of made  in  conformity  wdth  existing  laws  upon  the  subject  of 
State  elections. 

Art,  153. — The  General  Assembly  elected  under  this 
Constitution  shall  convene  at  the  State  House,  in  Baton 
Rouge,  upon  the  third  Monday  of  January  next  after  the  elec- 
tions, and  the  Governor  and  Lieutenant  Governor  elected  at 
the  same  time,  shall  be  duly  installed  in  office  during  the  first 
week  of  this  session,  and  before  it  shall  be  competent  for  the 
said  General  Assembly  to  proceed  with  the  transaction  of 
business. 

Art.  154. — AU  the  publications  herein  ordered  shall  be 
made  in  the  official  journal  of  the  Convention. 

Art,  155. — This  Constitution  shall  be  pubhshed  in  French 
and  English  in  the  official  journal  of  the  Convention,  from  the 
period  of  its  adjournment  until  the  first  Tuesday  of  Novem- 
ber, 1852,  one  thousand  eight  hundred  and  fifty-two. 

Done  at  Baton  Rouge,  July  31st,  1852. 

(Signed)  DUNCAN  F,  KENNER, 

President  of  the  Convention. 
(Attest)  J.  B,  WALTON, 

Secretary  of  the  Convention. 


SYSTEM    OF    PRACTICE, 

CONTAINING 

RULES   TO  BE  OBSERVED  IN  THE  PROSECUTION  OF 

CIVIL  ACTIONS. 


Sections  25  and  26  of  an  act  approved  on  the  25th  of  March,  1828. 

Sec.  25. — Be  it  enacted,  &c.  That  all  the  rules  of  pro- 
ceeding which  existed  in  this  State  before  the  promulgation  of 
the  code  of  practice,  except  those  relative  to  juries,  recusa- 
tion of  judges  and  other  officers,  and  vdth  respect  to  the  com- 
petency of  the  latter,  be  and  are  hereby  abrogated  ;  and  that 
all  the  civil  laws  wliich  were  in  force  before  the  promulgation 
of  the  civil  code  lately  promulgated,  be  and  are  hereby  abro- 
gated, except  so  much  of  title  tenth  of  the  old  ci\il  code  as  is 
embraced  in  the  third  chapter,  which  treats  of  the  dissolution 
of  communities  or  corporations. 

Sec.  26. — Be  it  enacted,  &c.  That  the  code  of  practice, 
Buch  as  it  has  been  sent  to  the  several  courts  in  tliis  State  in 
the  year  eighteen  hundred  and  twenty-five,  shall  be  considered 
as  having  fuU  force  of  law,  though  its  provisions  are  not  pre- 
ceded by  these  usual  words,  "  Be  it  enacted,"  and  it  had  been 
omitted  to  mention,  at  the  end  of  said  code,  the  names  of  the 
president  of  the  Senate,  the  speaker  of  the  House  of  Repre- 
sentatives, and  of  the  Governor  who  signed  the  same,  and  of 
the  date  when  the  said  code  was  approved. 


70  OF   CIVIL   ACTIONS.  ^ 

PART  I. 

OF   CIVIL   ACTIONS. 
TITLE   L 

OF  ACTIONS  IN  GENERAL, 

Art.  1. — An  action  is  the  right  given  to  every  person,  to 
claim  judicially  what  is  due  or  belongs  to  him. 

Action  means  also  the  exercise  of  that  right,  that  is  to 
Bay,  a  judicial  demand  founded  on  a  contract,  or  given  by 
law,  by  which  the  plaintiff  prays  that  the  person  against 
whom  he  proceeds,  be  ordered  to  do  that  which  he  has  boimd 
himself  towards  him  to  perform. 

14:  L.  420;  17  L.  132. 

CHAPTER  L 

OF   THE   GENERAL    DIVISIONS   OF   ACTIONS. 

Art.  2. — Actions  are  divided  into  several  kinds : 

The  fii'st  division  of  actions  is  into  personal,  real,  and 
mixed. 

Art.  3. — A  personal  action  is  that  by  which  a  person 
proceeds  against  one  who  is  personally  bound  towards  him, 
either  by  a  contract  or  by  virtue  of  the  law,  in  order  to  com- 
pel him  to  pay  what  he  owes  to  him,  or  to  perform  what  he 
had  promised. 

This  action  is  called  personal,  because  it  is  attached  to 
the  person  bound,  and  follows  liim  every  where. 

2L.  94;  10  L.  216;  6  A.  481. 


OF   CIVIL    ACTIONS.  71 

Art.  4. — A  real  action,. is  that  which  relates  to  claims 
made  on  immovable  property,  or  to  the  immovable  rights  to 
which  they  are  subjected. 

The  object  of  this  action  is,  the  ownership  or  the  posses- 
sion of  such  property  ;  and  they  are  therefore  subdivided  into 
petitory  and  possessory  actions. 

Art.  5. — The  petitory  action,  is  that  by  wliich  he  who 
has  the  property  of  a  real  estate,  or  of  a  right  upon,  or  grow- 
ing out  of  it,  proceeds  against  the  person  having  the  possession, 
in  order  to  obtain  the  possession  of  the  immovable  property, 
or  the  enjoyment  of  the  rights  upon  it,  to  which  he  is  en- 
titled. 

Art.  6. — A  possessory  action  is  that  by  which  one  claims 
to  be  maintained  in  the  possession  of  an  immovable  property, 
or  of  a  right  upon,  or  growing  out  of  it,  when  he  has  been 
disturbed  :  or  to  be  reinstated  to  that  possession,  when  he  has 
been  divested  or  evicted. 

Art.  7. — A  mixed  action,  is  one  which,  in  its  nature, 
partakes  both  of  the  real  and  of  the  personal  action,  such  as 
a  claim  for  the  ownership  of  real  property,  and  also  for  the 
fruits  it  has  produced,  or  their  value. 

6  R.  466. 

Art.  8. — The  second  general  division  of  actions,  classes 
them  into  civil  and  cruninal  actions. 

Art.  9. — A  civil  action  is  one  which  is  brought  for  pri- 
vate interest,  such  as  a  suit  to  obtain  the  payment  of  a  sum 
due,  the  restitution  of  property,  or  reparation  for  an  injury 
done  by  words  or  action. 

Art.  10. — A  criminal  action  is  one  wliich  is  instituted 
in  the  name  of  the  State,  by  its  proper  officers,  in  order  tp 
obtain  the  pubUc  reparation  of  any  crime  or  misdemeanor ; 
this  action  comes  under  the  head  of  penal  jurisprudence. 

Art.  11. — Actions,  with  respect  to  then-  object,  are  di- 
vided into  two  classes  ;  those  by  which  movables,  and  those 
by  which  immovables  are  claimed. 

6  A.  354. 


72  OF   CIVIL   ACTIONS. 

Art.  12. — Although  incori^orcal  lights  bo  not  in  reality 
movables  nor  immovables,  they  arc  nevertheless  placed  by 
law,  in  one  of  those  two  classes. 

Actions  tending  to  recover  an  immovable,  or  a  real  right, 
or  an  universality  of  tilings,  such  as  an  inheritance,  are  con- 
sidered as  real ;  while  actions  for  the  recovery  of  a  movable 
or  of  a  sum  of  money,  though  accompanied  with  a  mortgage, 
are  not  real  actions. 

17  L.  566. 


CHAPTER  II. 

OF   THE    RULES   APPLICABLE    TO   ALL    CIVIL   ACTIONS. 

Art.  13. — The  forms,  the  effects,  and  the  prescription  of 
actions  are  governed  by  the  law  of  the  place  where  they  arc 
brought :  but  contracts  are  governed  by  the  law  of  the  place 
where  they  were  entered  into. 

8  R.  262 ;  5  K  S.  585  ;  2  N.  S.  96  ;  6  K  S.  631 ;  8  N.  S.  8,  Y  M.  213,353 ; 
1  L.  225,542;  2  L.  115,  ^  L.  138  ;  11  L.  464;  12  L.  534;  13  L.  446;  14  L.  305; 
17  L.  458. 

Art.  14. — Every  obligation  gives  impHedly  a  right  of  ac- 
tion to  enforce  its  execution  ;  but  the  obligation  and  the  right 
of  action  do  not  always  arise  at  the  same  time.  Thus  in  con- 
tracts to  be  performed  at  a  future  period,  the  obligation  which 
grows  out  of  the  contract,  arises  at  the  very  moment  of  mak- 
ing it,  but  the  right  of  action  growing  out  of  it,  arises  only 
when  the  stipulated  term  has  arrived. 

Art.  15. — An  action  can  only  be  brought  by  one  having  a 
real  and  actual  interest  wliich  he  pursues,  but  as  soon  as  that 
interest  arise,  he  may  bring  his  action. 

4M.  662;  9  M.  466;  3  K  S.  291,392;  5  N.  S.  512;  8  N.  S.  509;  2  L.  263 
4  L  220,533;  5  L.  48  ;  14  L.  254,448  ;  17  L.  152,481;  18L.  92;  3  L.  431 
10  L.  154;  13  L.  13,  867;  1  •  L.  369;  1  R.  195  ;  10  R.  128;  2  A.  97,441 
t  A.  350. 


OF    CIVIL    ACTIONS. 


73 


j^iiT.  16. — In  all  actions,  wlncli  are  to  be  brought  at  tlie 
end  of  a  stated  period,  the  right  of  action  subsists  until  the 
last  day  has  expired. 

Art.  17. — Natural  obhgations  give  no  right  of  action,  but 
what  has  been  paid  pursuant  to  those  obligations  is  not  sub- 
ject to  repetition.  /- 

Those  are  natural  obligations,  for  which  the  law  gives  no 
right  of  action  ;  they  arise  on  contracts  entered  into  by  per- 
sons who,  though  possessed  of  sound  discretion  and  judgment 
enabling  them  to  make  contracts,  are  nevertheless  disquahfied 
by  law  from  contracting,  as  are  the  contracts  of  mamcd 
women  made  without  the  authorization  of  their  husbands. 

Art.  18. — He  who  pays  through  error,  what  he  docs  not 
owe,  has  an  action  for  the  repetition  of  what  he  has  thus  paid, 
unless  there  was  a  natural  obligation  to  make  such  payment ; 
but  he  must  prove  that  he  paid  through  error,  otherwise  it 
shall  be  presumed  that  he  intended  to  give. 

2  L.  129;  15  L.  316;  6  L.  204;  19  L.  138;  7  R.  522. 

j^RT  19.— Obhgations  contrary  to  justice,  good  faith  or 
good  morals,  such  as  those  by  which  a  reward  is  promised  to 
another  to  commit  a  crime,  give  no  right  of  action  to  either 
party  to  enforce  the  execution  of  the  contract. 

But  if  the  reward  promised  has  been  paid,  no  action  can 
be  brought  to  obtain  the  repayment  of  the  amount. 

Art  20. He  who  has  a  right  of  action  to  claim  what  is 

due  to  liim,  lias  a  right  yet  more  evident  to  use  the  same  cause 
of  action  as  an  exception,  in  order  to  preserve  his  rights. 

12  R.  472. 

Art.  21. — Actions  do  not  abate  by  the  death  of  one  of  the 
parties,  after  answer  filed. 

11  L.  360;  6  R.  44 ;  3  A.  547. 

Art.  22. — Actions  arising  from  obhgations  are  the  pro- 
perty of  him  in  favor  of  whom  they  have  been  contracted ; 
they  are  transmitted  with  his  estate  to  his  heirs,  who  may 
carry  them  on  in  their  own  name. 

6  L.  619. 


74  OF    PERSONAL    ACTIONS. 

Art.  23. — The  universal  successor,  or  successors,  by  an 
universal  title  of  a  deceased  person,  such  as  his  heirs,  or  uni- 
versal legatees,  are  entitled  to  the  same  actions  and  exceptions, 
as  the  person  to  whom  tliey  succeed  ;  hut  they  cannot  claim, 
on  their  own  behalf,  any  right  which  he  had  not  himself,  for 
this  reason,  that  no  one  can  transfer  a  better  title  to  another 
than  that  which  he  liimself  had. 

2  L.  514. 

Art.  24. — The  rule  laid  down  in  the  preceding  article 
takes  place  also  with  respect  to  the  successors  of  a  deceased 
person  claiming  a  thing  by  virtue  of  a  particular  title  ;  that  is 
to  say,  by  sale,  donation,  or  legacy,  but  so  far  only  as  concerns 
the  thing  itself,  of  which  the  deceased  has  thus  disposed  of  in 
their  favor. 

Art.  25. — Heirs  or  universal  legatees  may  be  sued  for  civil 
reparation  of  the  injury  caused  by  the  crimes  or  misdemeanors 
of  the  deceased,  w'hose  succession  they  have  accepted,  although 
no  action  was  instituted  for  that  purpose  against  the  deceased 
during  his  life,  and  although  neither  he  nor  his  heirs  have 
been  benefited  by  such  an  oifence. 


CHAPTER  III. 

OF    THE   RULES   PECULIAR  TO  THE  DIFFERENT    KINDS    OF    CIVIL 

ACTIONS. 

Sec.  I. — Of  the  several  kinds  of  Personal  Actions,  and  of 
the  7'uks  luhicli  (jovcrn  them. 

Art.  26. — A  personal  action  lies  against  liim  who  has 
bound  liimself  towards  another,  personally  and  independently 
of  the  property  which  he  possesses. 

10  L.  21G. 

Art.  27. — Such  action  can  only  be  brought  against  the 
\ 


OF   PERSONAL    ACTIONS.  75 

/ 

debtor,  or  the  obligor,  or  the  person  who  directly  represents 
him,  such  as  universal  heirs,  or  heirs  by  an  universal  title 

Art.  28. — Personal  actions  are  gi'oundcd  on  one  of  the 
four  causes  which  give  rise  to  personal  obhgations.  These  causes 
are  contracts,  or  quasi  contracts,  oflfences,  or  quasi  offences. 

Art.  29. — Personal  actions  arise  from  contracts,  where  one 
has  bound  himself  for  liis  own  advantage,  as  by  selling,  pur- 
chasing, liiring  or  letting,  or  by  any  like  contracts. 

1  L.  36;  10  L.  164,  216. 

Art.  30. — Personal  actions  arise  from  quasi  contracts, 
when  they  are  grounded  on  the  obligations  imposed  upon  him 
who  has  managed  the  affairs  of  another,  without  being  au- 
thorized. 

7  N.  S.  140;  11  L.  286 ;  2  R.  1 :  6  R.  91. 

Art.  31. — Personal  actions  arise  from  offences,  as  when 
one  has  become  Hable  to  another  for  the  injury  he  has  inflicted 
on  him  by  some  crime  or  offence,  such  as  theft  or  slander. 

2  L.  94 ;  6  A.  354. 

Art.  32. — Personal  actions  arise  from  quasi  offences,  when 
the  ground  of  action  is  the  injuiy  done  to  another,  by  one  of 
those  faults  wliich  are  not  considered  as  real  crimes  or  offences. 

1  N.  S.  410;  8N.  S.  588;  7  L.  531,  586;  10  L.  131,  288,  581. 

Art.  33. — Personal  actions  arising  from  contracts,  are  di- 
vided into  direct  and  equitable  actions. 

Art.  34. — A  direct  contra-distinguished  from  an  equi- 
table action,  is  that  which  arises  immediately  from  contracts, 
and  binds  ipso  facto  aU  who  have  been  parties  to  it. 

Art.  35. — An  equitable  action,  is  that  wliich  does  not  im- 
mediately arise  from  a  contract,  but  from  equity,  in  favor  of  q, 
third  person,  not  a  party  to  it,  and  for  whose  benefit  certain 
stipulations  have  been  made  :  thus  if  one  stij)ulated  in  a  con- 
tract entered  into  with  another  person,  and  as  an  express  con- 
dition of  that  contract,  that  this  person  shall  pay  a  certain 
sum  on  his  account,  or  give  a  certain  thing  to  a  third  person, 
not  a  party  to  the  act,  that  third  person  has  an  equitable  ac- 


76  OF    PERSONAL   ACTIONS. 

tion  against  the  one  who  has  contracted  the  obligation,  to 
enforce  the  execution  of  the  stipulation. 

5  R.  240;  6  R.  407    9  R.  19,48;  1  A.  280,372 ;  2  A.  940;  3  A.  129;  5  A.  225. 

Art.  36 — Certain  contracts,  from  their  nature,  give  rise 
to  two  species  of  personal  actions,  in  favor  of  the  contracting 
parties ;  one  of  these  is  like^vise  termed  direct,  in  contra-dis- 
tinction  to  the  other  which  is  called  a  contrary  action. 

Art.  37. — A  direct  action,  in  this  acceptation,  is  that 
which  arises  out  of  a  contract  at  the  very  moment  of  its  being 
made,  without  the  occurrence  of  any  new  cause  since  the  con- 
tract ;  as,  in  the  contract  of  loan  termed  commodat,  where 
the  action  arises  in  favor  of  the  owner  of  the  thing  against 
him  to  whom  he  has  lent  it,  in  order  to  recover  it. 

Art.  38. — The  contrary  action,  is  that  which  arises  from 
some  cause  wliich  has  occurred  since  the  contract,  and  has  for 
its  object  the  obtaining  of  some  indemnity,  such  as  the  action 
which  the  law  gives  to  the  borrower  in  the  loan  called  commo- 
dat, for  the  recoveiy  of  the  disbm'sements  wliich  he  has  been 
obliged  to  make  for  the  preservation  of  the  thing  lent  to  him. 

Art.  39. — It  is  of  the  essence  of  all  synallagmatic  con- 
tracts, that  is  to  say  of  those  wliich  contain  reciprocal  obliga- 
tions between  the  parties,  to  give  rise  to  two  species  of  direct 
actions. 

Thus,  in  the  contract  of  sale,  the  purchaser  has  an  action 
against  the  seller  to  compel  him  to  deliver  the  tiling  sold,  and 
the  vendor  has  likewise  his  action  against  the  pm'chaser,  to 
comjicl  him  to  i)ay  the  price. 

8  L.  1,  181;  10  L.  19;  11  L.  239. 

Art.  40. — Personal  actions,  being  attached  to  the  person 
of  the  debtor,  may  be  brought  against  all  his  heirs,  should  he 
die  without  having  extinguished  it,  but  each  of  them  ^\^ll 
only  be  liable  for  the  amount  and  portion  which  he  has  inher- 
ited from  the  debtor's  estate. 

10  L.  216. 


OF   THE    PETITORY    ACTION.  77 


Sec.  II.  Of  the  real  action,  its  subdivisions,  and  the  rides 
peculiar  to  it. 

Art.  41. — A  real  action  lies  against  liira  wlio,  without 
having  contracted  any  obligation  towards  the  plaintiff,  is  nev- 
ertheless bound  towards  him,  as  possessor  of  the  immovable 
property  of  which  that  plaintiff  claims  the  ownership  or  the 
possession,  or  on  which  he  claims  to  exercise  some  immovable 
right. 

Art.  42. — The  real  action  gives  the  right  to  follow  the 
thing  in  whatever  hands  it  may  be  found  ;  but  as  relates  to 
hj'pothecary  actions,  this  rule  is  subject  to  some  modifications 
which  are  established  in  the  paragraph  wliich  treats  of  that 
action. 

4  A.  553. 


§  1.   0/"  the  petitory  action. 

Art.  43. — The  petitoiy  action,  or  one  by  which  real  pro- 
perty, or  any  immovable  right  to  such  property  may  be  sub- 
jected, is  claimed,  must  be  brought  against  the  person,  who  is 
in  the  actual  possession  of  the  immovable,  even  if  the  person 
having  the  possession  be  only  the  farmer  or  lessee. 

But  if  the  farmer  or  lessee  of  a  real  estate  be  sued  for 
that  cause  of  action,  he  must  declare  to  the  plaintiff  the  name 
and  the  residence  of  his  lessor,  who  shall  be  made  a  party  to 
the  suit,  if  he  reside  in  the  State,  or  is  represented  therein, 
and  who  must  defend  it  in  the  place  of  the  tenant,  who  shall 
be  discharged  from  the  suit. 

4  N.  S.  391;  5  N.  S.  71,  232;  5  L.  356;  4  R.  29;  5R.  314;  12  R.  489; 
2  A.  487  ;  3  A,  637. 

Art.  44. — The  plaintiff  in  an  action  of  revendication  must 
make  out  his  title,  otherwise  the  possessor,  whoever  he  be,  shall 
be  discharged  from  the  demand. 

7  L.  37;  8  L.  234,  821 ;  10  L.  350;  9  R.  215,  37' 


78  OF    THE    POSSESSORY    ACTION,    ETC. 

Art.  45. — The  petitory  action  may  be  brought  by  one 
who  has  the  o^vnership  only  of  an  undivided  part  of  an  estate, 
or  of  a  real  right  to  which  such  an  estate  is  subjected,  though 
his  OANTicrsliip  may  be  limited  to  a  certain  period,  or  end  by 
the  occurrence  of  a  certain  event. 

8  N.  S.  171. 

§  2.   Of  the  possessory  action,  and  of  the  rules  which  govern  it. 

Art.  46. — The  possessory  action,  wliich  is  a  branch  of 
real  actions,  may  be  brought  by  any  possessor  of  a  real  estate, 
or  of  a  real  right,  who  is  disturbed  either  in  the  possession  of 
the  estate  or  in  the  enjoyment  of  the  right,  against  him  who 
causes  the  disturbance,  in  order  to  be  maintained  in,  or  restor- 
ed to  the  possession,  whether  he  has  been  evicted  or  disturbed  ; 
provided  liis  possession  be  accompanied  by  the  quaUfications 
hereafter  required  ;  slaves  being  classed  as  real  property  are 
likewise  subject  to  the  possessory  action. 

5  N.  S.  233 ;  8  N.  S.  171 ;  7  N  S.  487  ;  2  L.  227  ;  3  L.  415 ;  6  L.  58,  659 ; 
6L.  56;  7  L.  155,415;  9L.  153:  10  L.  140,442,465;  12L.  2;  15  L.  140,452,561 ; 
16  L.  29,45  ;  19  L.  253  1  R.  35,  109,163  ;  3  A.  339. 

Art.  47. — The  possessors  entitled  to  bring  these  actions, 
are  those  who  possess  as  owners. 

Persons  entitled  to  the  usufruct,  or  to  the  use  of  a  real  es- 
tate or  slaves,  and  others  having  real  rights  growing  from  such 
real  estate  or  slaves,  may  also  bring  their  action,  when  disturb- 
ed in  the  enjoyment  of  their  rights. 

2L.  227;  7  L.  6;  1  R.  142,159;  6  R.  100;  7  R.  149;  10  R.  407;  2  A.  357. 

Art.  48. — Those  who  possess  in  the  name  of  another,  such 
as  tenants,  are  not  entitled  to  the  possessory  action,  when  dis- 
turbed in  the  enjoyment  of  the  real  estate  which  they  possess 
in  that  quality,  or  even  when  they  are  exj^elled  ;  but  they 
have  their  remedy  against  the  person  in  whose  name  they  pos- 
sess, and  they  are  bound  to  apprise  him  of  the  disturbance 
they  have  experienced,  by  personal  notice,  if  he  be  within  the 
State,  and  by  advertisements  in  the  newspapers,  if  he  be  out 


OF   THE   POSSESSORY    ACTION,    ETC.  79 

of  the  State,  in  order  that  he  may  quiet  them,  if  it  can  be 
done,  otherwise  they  lose  all  right  to  claim  damages  from  him, 
and  will  be  liable  to  him  besides  for  all  the  loss  and  damages 
which  he  may  have  sustained  through  their  neglect, 

10  R.  407 ;  2  A.  357. 

^RT  49 — In  QTcdcv  that  the  possessor  of  a  real  estate  or 
slave,  or  one  who  clainis  a  right  to  which  such  estate  may  bo 
subjected,  may  be  entitled  to  bring  a  possessory  action,  it  is 
required  : 

1.  That  he  should  have  had  the  real  and  actual  posses- 
sion of  the  property,  at  the  instant  when  the  disturbance  oc- 
curred :  a  mere  civil,  or  legal  possession,  is  not  sufficient ; 

2.  That  he  should  have  had  that  possession  quietly  and 
without  interruption,  by  %artue  of  one  of  the  titles  prescribed 
in  the  47th  article,  for  more  than  a  year  previous  to  his  being 
disturbed  ;  provided  the  possession  of  less  than  one  year  be 
sufficient,  in  case  the  possessor  should  have  been  e\'icted  by 
force  or  by  fraud  ; 

3.  That  he  should  have  suffered  a  real  disturbance  either 
in  fact  or  in  law  ; 

4.  That  he  should  have  brought  his  suit,  at  the  latest, 
witliin  the  year  in  wliich  the  distm-bance  took  place. 

Wlien  the  possession  of  the  plaintiff  is  accompanied  with 
all  those  circumstances,  it  matters  not  whether  he  possesses  in 
good  or  in  bad  faith,  or  even  as  an  usurper,  he  shall,  neverthe- 
less, be  entitled  to  his  possessory  action. 

T  N.  S.  48G;    6L.  5C;    7  L.  6,414;    9  L.  152;    10  L.  140,405;    1   R.  142,159; 
6  R.  1 ;  10  R.  407  ;  2  A.  205  ;   3  A.  339. 

Art.  50. — The  disturbance  which  gives  rise  to  the  posses- 
sory action  may  be  of  two  kinds  :  disturbance  in  fact,  or  dis- 
turbance in  law. 

Art.  51. — Disturbance  in  fact  occurs,  when  one,  by  any 
act,  prevents  the  possessor  of  a  real  estate,  or  of  a  right  grow- 
ing from  such  an  estate,  from  enjoying  the  same  quietly,  or 
throws  any  obstacle  in  the  w\ay  of  that  enjoyment,  or  evicts 
him  through  violence,  or  otherwise. 


80  OF   THE    POSSESSORY    ACTION,    ETC. 

Art.  52. — Disturbance  in  law  takes  place,  when  one,  pre- 
tending to  be  the  possessor  of  a  real  estate,  says  that  ho  is  dis- 
turbed by  the  real  possessor,  and  brings  against  the  latter  the 
possessory  action  ;  for  in  such  a  case,  the  true  possessor  is  dis- 
turbed by  this  action,  and  may  also  bring  a  possessory  action, 
in  order  to  be  quieted  in  his  possession. 

But  in  no  case  shall  the  mere  demand  in  revendication  of 
a  real  estate,  or  of  a  real  right,  be  considered  as  a  disturbance 
in  the  enjoyment  of  a  possessor,  and  entitle  liim  to  bring  a 
possessory  action. 

Art.  53. — The  plaintiff  in  a  possessory  action,  needs  only, 
in  order  to  make  out  liis  case,  to  prove  that  he  was  in  posses- 
sion of  the  property  in  question,  in  the  manner  required  by 
this  Code,  and  that  he  has  been  either  disturbed  or  evicted 
within  the  year  previous  to  his  suit. 

So  that  when  the  possession  of  the  plaintiff,  or  the  act  of 
disturbing  him  is  denied,  no  testimony  shall  be  admitted,  ex- 
cept as  to  the  fact  of  the  possession,  or  as  to  the  act  of  dis- 
turbance, and  all  testimony  relative  to  property  shall  be  re- 
jected. 

7  N.  S.  486 ;  6  L.  50  ;  7  L.  6,4U;  9  L.  152  ;  3  A.  339. 

Art.  54. — If  the  possessor,  who  has  been  disturbed  in,  or 
evicted  from  his  possession,  biing  a  petitory  action,  that  is  to 
say,  claim  the  o-vvnership  of  the  i)ropcrty,  he  shall  not  after- 
wards be  entitled  to  the  possessory,  by  dismissing  the  petitory 
action. 

The  same  rule  shall  govern,  if  he  sue  at  the  same  time  for 
the  possession  and  the  ownership  of  the  property  ;  he  shaU 
then  be  considered  as  having  renounced  the  possessoiy  in 
order  to  resort  to  the  petitory  action. 

Art.  55. — Petitory  and  i)Ossessory  actions  shall  not  be  cu- 
mulated, or  joined  together,  except  by  consent  of  parties. 

Therefore,  he  who  is  sued  in  a  possessory  action,  cannot 
brmg  a  petitory  action,  until  after  judgment  shall  have  been 
rendered  in  the  possessory  action,  and  imtil,  if  he  has  been 

i 


OF  THE  HYPOIpECARY  ACTION.  81 

\ 

condemned,  he  shall  have  satisfied  the  judgment  given  against 
him. 

Art.  56. — Nevertheless,  if  the  judgment  rendered  in  a 
possessory  action,  require  a  settlement,  which  may  occasion 
delay,  then  the  judge  shall  fix  a  term  for  making  such  settle- 
ment, at  the  end  of  Avhich  the  petitory  action  may  be  brought. 

Art.  57. — If  the  plaintiff,  in  a  possessory  action,  consent 
that  it  be  cumulated  with  the  petitory  action,  he  shall  be  con- 
sidered as  having  renounced  the  possessory  action,  and  the 
judgment  shall  decide  only  the  question  of  OAvncrship. 

Art.  58. — When  each  of  the  jmrties,  in  a  possessory  ac- 
tion, alleges  that  he  has  the  possession  of  the  property,  and 
both  of  them  bring  suit  on  the  allegation  of  having  been  dis- 
turbed in  their  possession,  if  the  fact  of  the  possession  bo 
doubtful  and  uncertain,  the  judge  shall  maintain  in  possession 
the  one  of  the  parties,  who  shall  appear  to  him  to  have  the 
most  apparent  possession,  or  he  may,  at  the  request  of  one  of 
the  parties,  order  the  sequestration  of  the  property,  until  the 
question  of  oAviiership  shall  have  beefi  decided. 

1  L.  1;  2  A.  219. 

Art.  59. — If  one  who  is  disturbed  in,  or  evicted  from  his 
possession,  suffer  a  year  to  elapse  without  bringing  a  posses- 
sory action,  that  action  shaU  be  prescribed,  and  he  must  then 
resort  to  a  petitory  action. 

Art.  60. — Possessory  actions  cannot  be  maintained  for 
personal  property ;  the  action  in  revendication  for  that  species 
of  property,  having  nothing  in  common  with  the  extraordinary 
privileges  secured  to  the  owners  of  real  estate,  or  of  real  rights, 
when  they  are  disturbed  m  their  enjoyment. 


§  3.    0/  the  Hypothecary  Action  and  of  its  Rules. 

Art.  61. — An  hypothecary  action  is  a  real  action,  which 
the  creditor  brings  againt  the  property  which  has  been  hy- 


82  OF    THE    DYPOTIfJCARY    ACTION. 

pothecated  to  him  by  his  debtor,  in  order  to  have  it  seized  and 
sold  for  the  payment  of  his  debt. 

4  L.  452;  11  R.  209  ;  1  A.  204. 

Art.  62. — The  hypothecary  action,  like  all  real  actions, 
follows  the  property  to  "which  it  is  attached,  in  whatever  hand 
it  may  be  found,  but  it  is  subject  to  difterent  rules,  according 
as  the  property  may  be  in  the  possession  of  the  debtor,  of  his 
heirs,  or  of  third  persons. 

5  N.  S.  50;  4  L.  447;  9  L.  1 ;  10  L.  490;  11  L.  419;  1  A.  204. 

Art.  63. — When  the  hypothecated  property  is  in  the 
hand  of  the  debtor,  and  when  the  creditor,  besides  his  hypo- 
thecary right,  has  against  his  debtor  a  title  importing  a  confes- 
sion of  judgment,  he  shall  be  entitled  to  have  the  In-jiothecat- 
ed  property  seized  immediately  and  sold,  for  the  payment  of 
his  debt,  including  the  capital,  the  interest,  and  the  costs, 
pursuant  to  the  rules  provided  hereafter  for  executory  pro- 
ceedings. 

4  N.  S.  196;  8  L.  257;  11  K50;  13  L.  512;  IG  L.  223;  1  R.  295;  11  R.  209; 
1  A.  204,  279. 

Art.  64. — If  the  creditor  has  no  executory  title  against 
his  debtor,  and  the  latter  be  in  possession  of  the  hypothecated 
property,  the  former  can  only  seize  and  sell  such  property,  af- 
ter having  obtained  judgment  against  the  debtor  in  the  usual 
form. 

2  L.  132 ;  6  L.  5'J  ;  11  R.  209 ;  1  A.  204. 

Art.  65. — If  the  debtor  has  died,  leaving  a  single  heir, 
who  has  accepted  the  succession,  the  hypothecary  creditor 
may  act  against  that  heir,  in  the  same  manner  as  he  would 
have  done  against  the  debtor  himself,  that  is  to  say,  cither  by 
pursuing  the  executory  or  the  ordinary  mode  of  proceeding, 
according  to  the  tenor  of  the  hypothecary  act. 

1  A.  204. 

Art.  G6. — If,  on  the  contrary,  the  deceased  debtor  leaves 
several  heirs,  and  they  have  accepted  the  succession,  in  such  a 
jase  it  must  be  ascertained  whether  the  h}^)othecary  act  im- 
ports a  confession  of  judgment  or  not. 


OF   THE    HYPOTHECARY    ACTION.  83 

If  SO,  and  there  have  been  no  partition  of  the  estate  among 
the  heirs,  the  creditor  shall  be  entitled  to  seize  and  sell  the 
hypothecated  jiropcrty,  as  if  the  original  debtor  were  still 
alive. 

But  if  there  has  been  a  partition  among  the  heirs,  and  the 
hypothecated  property  has  fallen  to  the  share  of  one  or  more 
of  them,  the  creditor  may  obtain  an  order  of  seizure  against 
those  heirs,  and  sell  the  property  for  the  amount  of  his  claim, 
lea\nng  to  them  their  recourse  against  their  co-heirs  for  their 
proportion  of  the  debt. 

1  A.  204. 

Art,  67. — But  if  the  hypothecary  act  do  not  import  con- 
fession of  judgment,  the  creditor  cannot  seize  and  sell  the  hy- 
pothecated property  in  the  possession  of  the  heirs  of  his  debt- 
or, or  of  any  one  of  them,  until  he  has  obtained  a  judgment 
against  each  one  of  the  heirs,  for  such  a  part  of  the  debt  as 
he  is  bound  to  pay,  according  to  the  share  he  has  inherited, 
unless  the  creditor  prefer  to  have  the  judgment  executed  per- 
sonally against  the  heirs  or  their  property,  for  such  sums  as 
each  of  them  has  been  adjudged  to  pay. 

1  A.  204. 

Art.  68. — If  the  hypothecated  property  be  neither  in  the 
possession  of  his  debtor  nor  of  his  heirs,  but  in  that  of  a  third 
person,  the  creditor  has  his  action  against  that  person,  in  or- 
der to  compel  liim  either  to  give  up  the  property,  or  pay  the 
amount  for  which  it  stands  hypothecated.  This  is  the  hy- 
pothecary action,  properly  speaking. 

2  N.  S.  505;  4  N.  S.  402;  6  N.  S.  651;  8  N.  S.  403;  1  L.  29;  2  L.  135; 
7L.  488;  8  L.  257;  10  L.  194,490;  12  L.  296;  13  L.  313;  14  L.  133;  15  L.  188; 
16  L.  223;  2  A.  367. 

Art.  69. — If,  thirty  days  after  the  amicable  demand,  made 
from  the  debtor  or  his  heirs,  of  the  payment  of  an  hypotheca- 
ry debt,  it  has  not  been  fully  discharged,  the  creditor  may 
bring  his  action  against  the  third  possessor  of  the  property 
hyi)othecated  to  him,  to  have  it  seized  and  sold  ;  if  that  third 


84  OF    THE    HYPOTHECARY   ACTION. 

poesessor  have  not,  within  the  ten  clays,  after  having  Dccn  no- 
tified of  such  a  demand,  paid  the  amount  of  the  hypothecary 
debt,  including  the  interest  and  costs, 

4  N.  S.  402;  6  N.  S.  309,  405,  627;  7  N.  S.  577  ;  8  N.  S.  95;  2  L.  132,544; 
4L.  305,823,125,477;  6  L.  59,277  ;  11  L.  419;  15  L.  184,183;  16  L.  223  ;  19 
L.  154;  1  R.  135. 

Art.  70. — But  the  creditor,  who  brings  this  action  must 
declare  on  oath,  in  the  petition,  that  the  debt  on  wliich  he  de- 
mands the  seizure  of  the  hypothecated  property,  is  really  due 
to  him,  and  that  he  has  in  vain  demanded  payment  from  his 
debtor,  thirty  days  previous  to  his  bringing  his  suit. 

See  notes  to  art.  69. 

Art,  71. — Nevertheless,  if  the  tliird  possessor,  against 
whom  the  action  is  brought,  be  not  personally  bound  for  the 
payment  of  the  debt,  he  may  oppose  the  sale  of  the  hypoth- 
ecated property,  if  there  be  other  hypothecated  property  in 
the  possession  of  the  original  debtor,  and  require  its  pre%ious 
discussion,  pending  which,  the  proceedings,  as  to  the  sale  of 
the  property,  shall  be  stayed. 

16  L.  223;  9  R,  69. 

Art.  72, — The  tliird  possessor,  who  requires  discussion, 
shall  be  boimd  to  designate  to  the  plaintiff  the  property  of  the 
principal  debtor,  which  he  wishes  to  have  discussed,  and  ad- 
vance the  costs  required  for  carrying  on  the  necessary  proceed- 
ings, in  order  to  execute  this  discussion. 

He  is  not  entitled  to  demand  the  discussion  of  such  pro- 
perty of  the  principal  debtor,  which  may  be  out  of  the  juris- 
diction of  the  tribunal  of  the  place  where  the  payment  was  to 
have  been  made,  nor  that  of  property  in  dispute,  or  out  of  the 
possession  of  the  debtor, 

7  N,  S.  199;  7  L.  278;  11  L.  133. 

Art.  73. — The  exception  of  discussion  cannot  be  opposed  to 
the  privileged  creditor,  or  to  one  who  has  a  special  hypothe- 
cation. 

10  R.  45, 


OF   JUDGES THEIR    JURISDICTION.  85 

Art.  74.— Third  possessors  of  property  which  has  been 
seized,  owing  to  their  failure  of  discharging  the  amount  of  the 
hypothecary  debt,  within  ten  days  after  ha\ing  been  notified 
that  payment  has  been  demanded  of  the  hyjiothecary  debt 
may,  until  the  very  day  of  the  sale,  retain  possession  of  the 
hypothecated  property,  by  paying  the  debt  with  interest,  and 
all  the  costs  incurred  in  the  suit. 


CHAPTER  IV. 

WHERE  ACTIONS  ARE  TO  BE  BROUGHT,  AND  IN  WHAT  MANNER. 

Art.  75.— Actions  must  be  brought  before  competent 
judges. 

Sec.  I. — Of  Judges  ;  their  Jurisdiction  ;  hoiv  their  com- 
petency is  regulated. 

Art.  76. — Jurisdiction  means  the  power  of  him  who  has 
the  right  of  judging,  or  sometimes  that  word  means  also  the 
spa'ce  or  extent  of  country  over  which  the  judge  is  entitled  to 
exercise  that  power. 

Art.  77.— Degrees  of  jurisdiction,  means  the  different  tri- 
bunals  before  which  the  same  suit  may  be  successively  plead- 
ed, and  the  rules  estabhshed  for  proceeding  in  an  inferior 
jurisdiction,  previous  to  taking  the  suit  before  a  superior  juris- 
diction. 

Art.  78. — There  are  several  kinds  of  jurisdictions,  accord- 
ing to  the  nature  and  the  extent  of  the  powers  delegated  to 
the  judge  exercising  it. 

Art.  79. — The  first  division  is  into  civil  and  criminal  ju- 
risdiction. 

Art.  80. — Civil  jurisdiction  extends  to  all  civil  matters, 
and  criminal  jurisdiction  comprises  whatever  relates  to  crimes 
and  misdemeanors. 


'86  OF   JUDGES THEIR    JURISDICTION. 

Art,  81. — Some  judges  exercise  general,  wliilst  otlieis  pos- 
sess only  special  jurisdiction. 

Judges  having  general  jurisdiction,  are  those,  who,  in  vir- 
tue of  the  law,  take  cognizance  of  all  matters  but  such  as  are 
specially  excepted  from  their  jurisdiction. 

Judges  having  special  jurisdiction  are  such  as  have  an  ex- 
clusive jurisdiction  in  certain  cases  pointed  out  by  law. 

Constitution  of  1852.  Art.  61. — The  Jadiciarj^  power 
shall  he  vested  in  a  Supreme  Court,  in  such  Inferior  Courts  as 
the  Legislature  may,  from  time  to  time,  order  and  establish, 
and  in  Justices  of  the  Peace. 

Stat.  28th  April,  1853.  No.181.  §  1.— Be  it  enacted  by  the 
Senate  and  House  of  Kepresentatives  of  the  State  of  Louisiana, 
in  General  Assembly  convened,  T^at  there  shall  be  elected  in 
and  for  each  Judicial  District  of  the  State,  (the  first  Judicial 
District  excepted,)  by  the  qualified  voters  thereof,  one  Judge 
for  the  term  of  four  years,  who  shall  receive  a  salary  of  twenty- 
five  hundred  dollars  per  annum,  payable  quarterly  on  his  own 
warrant,  out  of  any  funds  in  the  Treasury  not  othei-wise  ap- 
propriated. 

§  2. — Be  it  further  enacted,  &c.,  That  the  jurisdiction  of 
the  District  Court  and  the  powers,  duties  and  responsibilities 
of  the  District  Judges  to  be  elected  under  this  act,  shall  re- 
main tlie  same  as  are  now  established  by  law,  subject  to  such 
modifications  as  may  hereafter  be  made  by  the  General  As- 
sembly. 

1  A.  146. 

Constitution  of  1845.  Art.  78 — The  District  Courts  shall 
have  original  jurisdiction  in  all  civil  cases,  when  the  amount  in 
dispute  exceeds  fifty  dollars,  exclusive  of  interest.  In  all 
criminal  cases,  and  in  all  matters  connected  with  succession, 
their  jurisdiction  shall  be  unlimited. 

Art.  82. — There  are  judges  having  an  exclusive  jurisdic- 
tion, such  as  the  special  judges  mentioned  in  the  preceding 
article. 


OF   JUDGES — THEIR   .JURISDICTION.  87 

There  are  judges  with  concurrent  jurisdiction,  that  is  to 
say,  having  cognizance  in  matters  of  the  same  nature,  though 
they  hold  their  courts  in  the  same  place  or  district. 

Art.  83. — There  are  judges  having  equal  jurisdiction,  that 
is  to  say,  that  though  they  can  only  take  cognizance  of  cases 
arising  within  a  certain  space,  they  have  a  similar  jurisdiction 
as  to  the  nature  of  cases  which  may  he  hrought  before  them. 

Art.  84. — There  are  judges  of  original,  and  judges  of  ap- 
pellate jurisdiction. 

Judges  having  original  jurisdiction,  are  those  before  whom 
suits  arc  brought  in  the  first  instance. 

Judges  having  appellate  jurisdiction,  are  those  before  whom 
appeals  are  brought  by  those  who  complain  of  the  judgment 
of  the  court  of  the  first  instance,  and  who  try  the  cause  again, 
affirming  or  reversing  the  judgment  of  the  inferior  court. 

Art.  85. — The  decision  of  some  judges  are  subject  to  ap- 
peal, others  decide  in  the  last  resort. 

Judges  subject  to  appeal,  are  those  whose  decisions  may  be 
carried  by  appeal  before  a  superior  court,  having  appellate  ju- 
risdiction. 

Judges  in  the  last  resort,  are  those  whose  judgment  cannot 
be  appealed  from. 

Art.  86. — In  matters  of  jurisdiction,  the  right  given  to  a 
judge  to  take  cognizance  of  certain  causes,  against  certain 
persons  within  his  jurisdiction,  is  termed  competency. 

Art.  87. — In  order  to  ascertain  whether  a  judge  be  com- 
petent or  not,  three  points  must  be  taken  into  consideration  ; 

1.  The  object  or  the  amount  in  dispute  ; 

2.  The  person  of  the  defendant  ; 

3.  The  place  where  the  action  is  to  be  brought. 

Art.  88. — To  determine  on  the  comi30tency  of  a  judge,  a» 
relates  to  the  object  or  amount  in  dispute  before  him,  it  is  ne- 
cessary to  examine  what  are  his  powers,  what  is  the  nature  of 
the  cause,  and  what  is  the  amount  of  the  sum. 

Art.  89. — To  determine  liis  competency,  as  relates  to  the 
person  of  the  defendant,  the  ride  which  requires  that  the  do- 


88  OF   JUDGES THEIR   JURISDICTION. 

fendant  be  sued  at  the  place  of  his  domicil  or  usual  residence 
must  be  observed.  This  rule  is  subject,  however,  to  various 
exceptions,  detennined  in  the  chapter  which  treats  of  judicial 
demands  and  of  citations. 

1  L.  223 ;  C  R.  6. 

Art.  90. — To  determine  on  his  competency,  as  relates  to 
the  place  where  the  action  is  brought,  we  must  be  governed  ' 
by  the  rule  which  provides  that  a  judge  shall  not  exercise 
any  jurisdiction  beyond  the  limits  of  the  territory  assigned  to 
him. 

Art.  91. — When  the  jurisdiction  of  the  judge,  before 
whom  a  suit  is  brought,  is  limited  to  a  certain  sum,  the  ques- 
tion of  jurisdiction  must  be  decided  by  the  amount  claimed,  and 
not  by  the  sum  actually  due,  not  including,  however,  the  in- 
terest, and  the  costs  which  have  been  subsequently  incurred. 

But  if  one,  in  order  to  give  jurisdiction  to  a  judge,  de- 
mand a  sum  below  that  which  is  really  due  to  him,  he  shall  be 
presumed  to  have  remitted  the  over2)lus,  and  after  having  ob- 
tained judgment  for  the  sum  he  had  claimed,  he  shall  lose  all 
right  of  action  for  that  overplus. 

2  R.  207  ;  5  R.  90;  See  Art.  156. 

Art.  92. — The  consent  of  parties  cannot  render  a  judge 
competent  to  try  a  cause,  which  from  its  nature  cannot  be 
brought  before  him,  or  when  the  amount  in  dispute  exceeds 
the  sum  over  which  he  has  jurisdiction.  All  judgments,  ren- 
dered in  contravention  of  this  provision,  shall  be  void. 

2  R.  54 ;  8  R.  201. 

Art.  93. — If  one  be  cited  before  a  judge,  whose  jurisdic- 
tion does  not  extend  to  the  place  of  his  domicil  or  of  liis  usual 
residence,  but  who  is  competent  to  decide  the  case  brought 
before  him,  and  he  plead  to  the  merit,  instead  of  declining  the 
jurisdiction,  the  judgment  given  shall  be  vahd,  except  the  de- 
fendant be  a  minor. 

2L.  224;  11  R.  11. 

Art.  94. — The  same  cause  cannot  be  brought  before  two 


OF    THE    MODE    OF    BRINGING    CIVIL    SUITS.  89 

separate  courts,  though  they  be  possessed  of  concurrent  juris- 
diction, except  by  discontinuing  the  suit  first  brought  before 
the  answer  is  filed. 

Hence,  if  the  same  suit  be  brought  before  two  separate 
courts,  having  concurrent  jurisdiction,  the  judge,  before  whom 
the  action  was  brought  first,  shall  sustain  his  jurisdiction,  and 
the  defendant  shall  be  entitled  to  have  the  cause  dismissed  by 
the  other  court,  and  to  recover  costs. 

Nevertheless,  if  the  defendant,  instead  of  claimng  to  be 
dismissed,  answer  in  the  two  actions,  in  the  two  separate 
courts,  the  first  judgment  rendered  by  either  of  them  shall  be 
vahd  and  executory  against  the  party  cast  in  the  action.  All 
proceedings  shall  be  staid  in  the  other  court,  and  the  plaintiff 
dismissed  after  paying  the  costs. 

Sec.  II. — Of  the  mode  of  bringing  civil  suits,  of  suits,  and  of 
parties  litigant. 

Art.  95. — Actions  are  brought  before  the  courts  by  what 
is  termed  suit. 

Art.  96. — A  suit  is  a  real,  personal,  or  mixed  demand, 
made  before  a  competeijt  judge,  by  which  the  parties  pray  to 
obtain  their  right,  and  a  decision  of  their  disputes. 

In  that  acceptation,  the  words,  suit,  process  and  cause,  are 
almost  synonymous. 

Art.  97. — Civil  actions  may  be  prosecuted,  according  to 
the  nature  of  the  case,  by  three  kinds  of  proceedings,  to  'SNdt : 

Ordinary,  executory,  or  summary. 

8  N.  S.  95. 

Art.  98. — The  proceedings  are  ordinary,  when  citation 
takes  place,  and  all  the  delays  and  forms  of  law  are  observed. 

They  are  executory,  when  seizure  is  obtained  against  the 
property  of  the  debtor,  without  previous  citation,  in  virtue  of 
an  act  or  title  importing  confession  of  judgment,  or  in  other 
cases  provided  by  law. 

They  are  summary,  when   carried  on  with  rapidity,  and 


90        WHAT    PERSONS    ARE    ENTITLED    TO    BRING    ACTIONS. 

without  the  observance  of  the  formalities  required  in  ordinary 
cases,  as  when-  courts  provide  for  the  administration  of  vacant 
successions,  and  the  property  of  minors  and  absent  heirs. 

8  L.  25'7  ;  3  A.  434. 

Art.  99. — In  order  to  constitute  a  suit  or  action,  there 
must  be,  at  least,  two  parties  present,  or  duly  represented, 
though  one  of  the  two  may  fail  to  appear  ;  it  is  therefore  that 
they  are  called  the  principal  parties  to  the  suit. 

G  N.  S.  517  ;  4  L.  158;  5  L.  424  ;  17  L.  479. 

Art.  100. — The  plaintiff  is  he  who  sues  another  for  some- 
thing which  he  says  is  due,  or  belongs  to  him. 

The  defendant  is  the  one  against  whom  this  suit  is 
brought. 

Art.  101. — Besides  the  plaintiff  and  the  defendant,  there 
are  often  other  parties  to  the  suit,  such  as  warrantors,  third 
persons  intervening,  and  parties  opposing ;  but  such  parties, 
whether  plaintiffs  or  defendants,  as  the  case  may  be,  are  only 
so,  incidentally  and  subsidiarily. 


CHAPTER  V. 

WHAT    PERSONS   ARE    ENTITLED   TO    BRING    ACTIONS, 

Art.  102. — Those  who  are  disquahfied  from  contracting 
are  generally  disquahfied  from  suing. 

The  exceptions  to  this  rule  are  provided  in  the  following 
articles. 

Art.  103. — Slaves  cannot  sue,  either  as  plaintiffs,  or  as 
defendants,  except  as  relates  to  their  freedom. 

But  the  earnings  of  slaves,  and  the  price  of  their  service, 
belong  to  their  owners,  who  have  their  action  to  recover  the 
amount  from  those  who  have  employed  them. 

Stat.  SOtJi,  3Iay,  1846,  p.  153— From  the  passage  of  tliis 
act,  no  slave  shaU  be  entitle  to  his  or  her  freedom  under  the 


WHAT    PEKSONS    AKE    ENTITLED    TO    BRING    ACTIONS.        91 

pretence  that  lie  or  she  has  been,  with  or  without  the 
consent  of  his  or  her  owner,  in  a  country  where  slavery  does 
not  exist,  or  in  any  of  the  States  where  slavery  is  prohibited. 

6  N.  S.  418;  1  N.  S.  350;  3  L.  170;  9  L.  156;  3  A.  556. 

Art.  104.  Children,  as  long  ^s  they  are  subject  to  pater- 
nal power,  that  is  to  say,  while  tTieir  fathers  and  mothers  are 
living,  and  they,  not  emancipated,  cannot  bring  suit  against 
them. 

Art.  105. — A  married  woman,  cannot  sue  her  husband,  as 
long  as  the  marriage  continues,  except  it  be  to  obtain  a  sepa- 
ration from  bed  and  board,  or  for  the  restitution  and  enjoy- 
ment of  her  paraphernal  property,  or  in  case  she  holds  her 
property  separate  from  him,  by  her  marriage  contract  ;  but  in 
every  case,  she  cannot  sue,  without  the  authorization  of  the 
court  before  which  she  brings  her  action. 

Stat.  7th  April,  1826,  p.  ICG. — §  1.  The  article  one  hun- 
dred and  five  be  amended  so  as  to  make  the  English  corres- 
pond with  the  French  text  by  inserting  after  the  words  "  bed 
and  board,"  the  words  "  or  for  the  separation  of  property." 

2  L.  29  ;  1  R.  230,  468. 

Art.  106. — A  married  woman,  whether  she  be  of  age,  or 
a  minor,  cannot  appear  in  court  against  any  one,  without  the 
authorization  of  her  husband,  although  she  may  be  a  public 
merchant,  carrying  on  her  trade  separate  from  him,  unless  she 
has  obtained  a  separation  from  bed  and  board,  by  virtue  of  a 
jugdment  duly  executed,  or  has  been  regularly  divorced. 

8  N.  S  515  ;  4  K  S.  388;  1  R.  230,468 ;  2  R.  368  ;  6  R.  77 :   2  A.  879 :  5  A.  631 ; 

Art.  107. — Husbands  have,  under  their  control,  the  per- 
sonal and  possessory  actions  to  which  their  wives  are  entitled, 
though  they  be  themselves  minors  ;  therefore,  they  can  pro- 
ceed judicially,  and  in  their  own  name,  in  whatever  relates  to 
the  preservation  of  the  dotal  property,  which  their  wives  have 
brought  to  them  by  marriage,  as  well  as  to  the  recovering  of 
the  debts  due  them,  these  being  under  their  administration. 


92        WHAT    PERSONS    ARE    ENTITLED    TO    BRING    ACTIONS, 

But  actions,  relating  to  the  ownership  of  tlie  dotal  or  pa- 
raphernal property  of  the  wife,  or  of  some  real  right  helonging 
to  her,  must  be  brought  by  the  wife,  duly  authorized  by  her 
husband,  or  by  the  judge,  if  he  fails  to  do  it. 

3  N.  S.  615;  2  L.  29;  9  L.  348;  4  R.  37,114;  6  R.  77,154;  2  A.  879;  5  A.  631; 

Art.  108. — Min(»rs,  persons  interdicted,  or  absent,  cannot 
sue,  except  through  the  intervention,  or  with  the  assistance  of 
their  tutors  or  curators. 

5  N.  S.  677;  8  N.  S.  665;  2  L.  142;  6  L.  493  ;  7   L.  216,559;  9  L.  234 ;  10 
L.  14,454;  3  R.  119;  7  R.  167. 

Art.  109. — When  minors  are  under  the  age  of  puberty, 
their  tutors  act  themselves,  in  all  judicial  proceedings,  in 
the  name  of  their  minors,  in  all  the  suits  which  may  be 
brought  for  them,  without  making  them  parties  to  those  ac- 
tions. 

The  curators  of  persons  interdicted,  or  absent,  act  judi- 
cially in  the  name  of  those  whom  they  represent,  in  the  same 
manner  as  the  tutors  of  minors,  under  the  age  of  puberty. 

Art.  110. — When  minors  have  attained  the  age  of  puber- 
ty, they  appear  themselves,  and  in  their  own  names,  in  all 
their  suits  ;  but  they  must  be  assisted  by  the  curators  ad  lites 
appointed  to  assist  them  generally  in  all  suits,  or  specially  for 
any  one  suit,  unless  they  have  been  emancipated  by  mamagc, 
in  which  case,  the  minor  husband  may  act,  without  the  assist- 
ance of  any  curator. 

The  office  of  "  Curator  ad  litcs"  is  abolished  by  tlie  9th  section  of  etat.  11th 
March,    1830,  p.   48.     See  Civil  Code,  art.   S57,  and   anicndments.    4  L.  477 ; 

6  L.  231. 

Art.  111. — The  curators  of  vacant  successions,  or  of  ab- 
sent heirs,  may  bring  all  lands  of  actions,  relating  to  their  ad- 
ministration, in  their  own  name,  and  in  their  quahty,  without 
being  obliged  to  mention  the  name  of  the  heirs  they  represent, 
because  it  is  often  uncertain  whether  such  heirs  exist,  and  their 
names  are  generally  unknown, 

5  L.  472;  15  L.  492;    1  R.  108;  1  A.  75. 

Art,  112. — Bodies  corporate,  and  chartered  institutions, 


AGAINST    WHOM    ACTIONS    MAT    bS    BROUGHT.  93 

act  judicially  through  their  proper  representatives,  under  the 
name  or  title  given  to  them  in  tlieir  act  of  incorporation. 

8  L.  Ill  ;  2  A.  897. 

Art.  113. — As  the  right  of  action  may  be  transmitted,  it 
passes  to  the  heirs  ;  therefore,  the  heirs  of  the  deceased  may 
sue  the  debtor  of  the  succession,  in  the  same  manner  as  the 
deceased  himself  could  have  done. 

But  actions  being  divisible,  if  there  be  several  heirs,  each 
may  sue  for  his  separate  share,  in  the  same  manner  as  each  is 
only  bound,  pro  rata,  of  his  share  for  the  debts  of  the  succes- 
sion. 

6  ]Sr.  S.  292 ;  5  L.  363 ;  15  L.  514 ;  16  L.  31 ;  18  L.  41  ;  19  L.  403,405 ;  1  R. 
54,521;  5R.  473. 


CHAPTER  VI. 

AGAINST    WHOM   ACTIONS   MAY    BE   BROUGHT. 

Art.  114. — Civil  actions  can  only  be  brought  against  such 
slaves,  as  are  claimed  as  slaves,  and  allege  that  they  are  free. 

As  relates  to  the  damages  which  they  may  occasion  by  their 
offences  and  quasi  offences,  the  person  aggrieved  must  sue  the 
owner,  who  is  bound  to  repay  them,  unless  he  should  prefer  to 
let  the  offending  slave  be  seized  and  sold,  in  order  that  the 
damages  sustained  may  be  satisfied  out  of  the  proceeds. 

7  L.  586 ;   9  L.  341. 

Art.  115. — Actions  against  interdicted  persons,  or  minors 
under  the  age  of  puberty,  must  be  brought  directly  against 
the  tutor  of  the  minor,  or  the  curator  of  the  interdicted 
person. 

.  If  the  minor  be  above  the  age  of  puberty,  the  suit  must 
be  brought,  both  against  him  and  against  his  curator  ad  Utes, 
unless  he  be  a  husband,  emancipated  by  marriage,  in  wliich 
case  he  may  be  sued  alone  ;  if  the  minor  be  absent,  the  suit 


94  AGAINST    WHOM    ACTIONS    MAY    BE    BROUGHT. 

may  be  brought  against  his  curator  ad  Ufcs,  who  shall  answer 
both  in  liis  own  name,  and  in  that  of  the  minor. 

See  note  to  art.  110. 

Art.  116. — If  the  minor,  whether  under  or  above  the  age 
of  puberty,  against  whom  one  intends  to  institute  a  suit,  has 
no  tutor,  nor  curator  ad  Utes,  the  plaintiff  must  demand  that 
a  curator  ad  hoc  be  named  to  defend  the  suit.  The  same 
course  must  be  pursued,  if  the  person  intended-  to  be  sued,  be 
absent  and  not  represented  in  the  State. 

2  N.  S.  554;  3  X.  S.  178;  4  N.  S,  185,  431,680;  6  N.  S.  15;  1  L.  83;  2  L.  467 
8  L.  244,485;  4  L.  157,258;  5  L.  489;  6  L.  377,472,690;  7  L.  75;  9  L.  79,88,276 
10  L.  84,121,420;  11  L.  267;  12  L.  449,575,606;  13  L.  284;  14  L.  415,447 
15  L.  37,83  ;  6  R.  142,189;  2  A.  562,916,1010 ;  3  A.  562. 

Art.  117. — When  the  tutor  of  a  minor  under  the  age  of 
puberty,  has  interests  opposed  to  those  of  his  ward,Jie  cannot 
sue  him,  except  by  making  the  under  tutor  defendant  in  the 
cause. 

Art.  118. — When  one  intends  to  sue  a  married  woman, 
for  a  cause  of  action  relative  to  her  own  separate  interest,  the 
suit  must  be  brought,  both  against  her  and  her  husband. 

Should  her  husband  be  absent,  the  plaintiff  must  demand 
that  she  be  authorized  by  the  judge  before  whom  the  suit  is 
brought,  to  defend  it  alone,  if  she  be  of  age  ;  if  she  bo  a  mi- 
nor, he  must  pray  for  the  nomination  of  a  curator  ad  hoc,  to 
assist  her  in  her  defence. 

Nevertheless  if  she  be  divorced  or  separated  from  her  hus- 
band, from  bed  and  board,  by  a  judgment  duly  executed,  she 
may  be  sued  alone,  without  the  authorization  of  her  husband 
or  of  the  judge  being  required. 

4  N.  S.  388 ;  2  L  36 ;  4  L.  259 ;  6  L.  639 ;  10  L.  401,574 ;  2  R.  368 ;  6  R.  127, 
407;  9R.  192;  2  A.  879. 

Art.  119. — Suits  against  coriiorations,  corporate  bodies  or 
chartered  companies,  must  be  brought  against  them  under 
their  legal  titles. 

Art.  120. — If  one  against  whom  there  was  a  cause  of  ac- 
tion,  die,  leaving  one  heir  only,  the  suit  shall  be  carried  on 
against  such  heir,  as  it  would  have  been  against  the  deceased. 


AGAINST   WHOM    ACTIONS   MAT    BE    BROUGHT.  95 

If  the  suit  had  already  been  brought  against  the  deceased, 
and  he  had  not  answered,  it  shall  not  be  interrupted,  but  shall 
be  continued  against  the  heir,  by  a  mere  citation  or  notice 
served  on  him  to  that  eifect,  within  the  delay  for  original  cita- 
tions, according  as  the  distance  may  be  from  his  domicil  to  the 
court  where  the  action  has  been  brought. 

If,  on  the  contrary,  the  deceased  have  two,  or  more  heirs, 
the  plaintiff  may  proceed  personally  against  each  of  them,  for 
the  share  which  he  inherits,  if  that  share  be  suflicicntly 
known  and  ascertained  by  an  inventory,  or  partition  ;  other- 
wise, they  can  only  be  sued,  each  for  a  virile  portion,  that  is 
to  say,  for  an  equal  part  of  the  debt,  dividing  it  in  as  many 
parts  as  there  are  heirs. 

If  the  suit  had  been  already  commenced  against  the  de- 
ceased, it  shall  be  continued  against  his  several  heirs,  by  citing 
each  of  them  separately,  as  if  there  were  only  one,  but  judg- 
ment can  only  be  given  personally  against  each,  for  his  hered- 
itary share,  or  virile  portion,  as  above  provided. 

3  N.  S.  623 ;  6  N.  S.  427  ;  1  L.  ]  1 1 ;  3  L.  527  ;  5  L.  361 ;  8  L.  527 ;  10  L.  396 ; 
12  L.  429;  5  R.  224,473;  6  R.  44;  11  R.  37;  2  A.  484. 

Art.  121. — The  hypothecary  creditors  of  a  person  de- 
ceased, have,  besides  their  action  against  each  of  liis  heirs,  as 
provided  in  the  preceding  article,  an  hypothecary  action 
against  such  of  the  heirs,  who  have  possession  of  some  prop- 
erty, subject  to  their  hypothecation. 

This  action  lies  for  the  whole  amount  of  the  debt,  wdiethci 
the  heir,  thus  sued,  possesses  the  whole,  or  only  a  part  of  the 
hypothecated  property  ;  he  has,  however,  his  recourse  against 
his  co-heirs,  for  the  share  which  they  are  boiind  to  contribute 
towards  the  pa}Tnent  of  the  debt. 

The  heir,  against  whom  the  hypothecary  action  is  institu- 
ted, may  be  discharged,  by  relinquishing  such  hypothecated 
property  as  may  have  fallen  to  his  share,  if  there  has  been  a 
partition,  or  his  undivided  share  of  such  property,  if  the  pro- 
perty has  not  been  divided. 

But  this  relinquishment  shall  not  free  the  heir  from  his 


96  AGAINST    WHOM    ACTIONS    MAY    BE    BROUGHT. 

liability  to  the  personal  action,  in  case  tlie  creditor  should  pre- 
fer to  proceed  against  liim  directly,  rather  than  to  resort  to 
the  hypothecary  action,  or  in  case  the  proceeds  of  the  sale  of 
the  hypothecated  property  should  be  insufficient  to  discharge 
the  debt. 

Art.  122. — All  kinds  of  actions  may  be  brought  against 
vacant  successions,  when  all  the  heirs  are  absent  and  not  rep- 
resented in  the  State,  provided  they  be  instituted  against  the 
curator  appointed  to  administer  the  succession. 

The  judgments  rendered  against  the  curator,  are  as  valid 
and  efficacious,  as  if  they  had  been  rendered  against  the  heirs 
themselves. 

But  if  some  of  the  heirs  of  the  deceased  are  present,  or 
represented  in  the  State,  the  suit  must  be  brought  against  the 
heir  present,  or  represented,  as  weU  as  against  the  curator  of 
those  who  are  absent. 

2  L.  255 ;  3  L.  274 ;  7  R.  206 ;  8  R.  488. 

Art.  123. — Testamentary  executors  may  appear,  and  de- 
fend all  the  actions  brought  against  the  succession  they  ad- 
minister, when  none  of  the  heirs  are  present  or  represented 
in  the  State  ;  but  if  all  the  heirs,  or  any  one  of  them,  be  pre- 
sent or  represented,  none  but  personal  actions  can  be  brought 
against  the  testamentary  executor  alone.  All  real  actions,  such 
as  those  of  revendication,  and  the  like,  must  be  brought  both 
against  the  testamentary  executor  and  the  heirs  present  or 
represented. 

8  R.  488. 


OF   COURTS   OF   ORIGINAL    JURISDICTION.  97 


PART  11. 

CONTAINING 

BULES   TO   BE   OBSERVED    IN   THE    PROSECUTION 

OF   CIVIL  ACTIONS. 


TITLE  I. 

PROCEEDINGS   TO   BE   OBSERVED    IN    THE    PROSECUTION    OF   AC- 
TIONS  BEFORE   COURTS   OF    ORIGINAL   JURISDICTION. 

Art.  124. — The  rules  of  proceedings,  contained  in  the 
present  title,  relate  only  to  the  district  and  parish  courts  of 
the  State,  when  in  the  exercise  of  their  ordinary  jurisdiction. 

Special  rules  are  hereafter  established  for  courts  of  pro- 
bates and  justices  of  the  peace. 


CHAPTER   L 

OF   COURTS   OF   ORIGINAL  JURISDICTION,  AND   THEIR   POWERS. 

Art.  125. — The  Hmits  of  the  territorial  jurisdiction  of  the 
several  district  and  parish  courts  in  this  state,  are  established 
by  special  statutes. 

Art.  126. — The  jurisdiction  of  district  courts,  excepting 
the  court  of  the  first  district,  extends  over  aU  civil  cases, 
when  the  amount  in  dispute  exceeds  fifty  dollars. 
7 


98  OF   COURTS    OF    ORIGINAL    JURISDICTION. 

Their  judgments  are  in  the  last  resort  in  all  the  causes, 
when  the  amount  in  dispute  is  under  three  hundred,  and  ex- 
ceeds fifty  dollars  ;  for  all  larger  sums,  an  appeal  lies  from 
their  judgment.  The  court  of  the  first  district  has  the  same 
jurisdiction,  except  in  causes  originating  in  the  city  of  New 
Orleans,  where  the  said  court  exercises  original  jurisdiction  in 
cases  above  one  hundred  dollars  and  upwards,  and  without  ap- 
peal from  one  hiuidred  to  three  hundred  dollars. 

Staf.  lOfh  Fchnmnj,  1841,  p.  16.  §  11.— Whenever  a  con- 
flict of  privileges  arises  between  different  creditors,  all  the  suits 
and  claims  shall  be  transfen-ed  to  the  court  by  whose  mandate 
the  property  on  which  the  privilege  or  right  of  mortgage  is  to 
be  exercised,  was  first  seized  either  on  mesne  process  or  on  de- 
finitive execution  ;  and  said  courst  shall  proceed  to  class  said 
pri\ileges  and  rights  of  mortgage  according  to  their  rank  and 
dignity,  in  a  summary  manner,  after  notifying  aU  parties  inter- 
ested. 

See  amendments  to  Art.  81. 
Editor's  Note. — Parish  and  Probate  Courts  and  the  City  Courts  of   New 
Orleans  no  longer  existing,  it  is  not  deemed  necessary  to  note  the  vast  num- 
ber of  cases  that  have  been  decided  arising  out  of  questions  of  conflict  of  ju 
risdiction. 

Art.  127. — The  parish  and  city  courts  of  New  Orleans 
have  a  concurrent  jurisdiction  with  the  first  district  court, 
subject  to  the  same  restrictions  and  rules. 

Art.  128. — The  parish  courts,  except  that  of  the  parish 
of  Orleans,  have  jurisdiction  in  all  civil  cases,  when  the  value 
in  dispute  does  not  exceed  three  hundred  dollars. 

Their  decisions  arc  in  the  last  resort,  when  the  value  in 
dispute  does  not  exceed  fifty  dollars,  and  subject  to  appeal 
when  it  exceeds  that  sum  ;  but  an  appeal  lies  in  all  cases 
where  the  right  to  real  property  is  in  question,  or  where  the 
legality  of  a  tax,  or  of  some  toll  is  disputed. 

See  aniendements  to  Art  81. 
G  R.  427  ;  9  R.  153. 

Art.  129. — District  and  parish  courts  have  no  jurisdio 


OF    COURTS   OF    ORIGINAL   JURIbDICTION".  99 

tion,  when  actions  arc  brought  against  persons  residing  in  tho 
State,  out  of  the  limit  of  their  respective  jurisdiction,  except 
in  the  cases  expressed  in  this  code,  unless  the  defendant,  of 
his  own  accord,  should  submit  to  their  jurisdiction,  as  hereaf- 
ter provided. 

2  N.  S.  375;  3  K  S.  651  ;  4  N.  S.  33,57,188,300;  5  N.  S.  73;  8  N.  S.  247 
2  L.  'J'24;  3  L.  127,280;  8  L.  213,523;  9  L.  649;  10  L.  228;  12  L.  44; 
13  L.  371.375;  14  L.  131,172;  18  L.  17,557,503;  111.228,537;  2U.  128; 
8  R.  7,28,244,  411. 

Art.  130. — All  judges  possess  the  powers  necessary  for 
the  exercise  of  their  respective  jurisdictions,  though  the  same 
be  not  expressly  given  by  law. 

2  A.  87. 

Art.  131. — The  judges  of  the  supreme,  district,  and 
parish  courts,  have  the  power  to  punish  all  contempts  of  their 
authority,  by  fine,  not  exceeding  fifty  dollars,  and  imprison- 
ment for  a  period  not  exceeding  ten  days,  for  each  offence  of 
that  kind. 

1  L.  134;  11  L.  601;  8  R.  500;  1  A.  183. 

Art.  132. — Attorneys  and  advocates,  when  guilty  of  con- 
tempt of  the  courts,  before  which  they  plead,  arc  subject  to 
punishment,  pursuant  to  the  provisions  of  special  laws. 

Stat.  20th  Ilarch,  1839,  p.  170.— §  21.  When  a  fine 
shall  b3  imposed  by  any  court  of  justice,  for  the  non-at- 
tendance of  any  witness,  juror,  or  for  any  other  cause,  it  shall 
be  the  duty  of  the  clerk  of  said  court  to  issue  within  two  ju- 
dicial days,  a  writ  of  fieri  facias,  at  the  suit  of  the  State, 
against  the  person  or  persons  on  whom  said  fine  shall  have 
been  imposed,  and  that  the  clerk  and  sherift",  or  coroner  and 
marshal,  as  the  case  may  be,  shall  be  made  responsible  for 
the  faithful  performance  of  the  law  contained  in  the  above 
section  ;  provided,  however,  that  such  fines  shall  not  be  im- 
posed without  a  rule  on  the  party  to  show  cause  unless 
the  circumstances  of  the  case  should  in  the  discretion  of  the 
Court  require  no  delay. 

6N.S.  161-  11  L.  601;  1  L.  135;  8  R,  600. 
See  1  A,  183. 


100  OF    COURTS    OF    ORIGINAL    JURISDICTION, 

Art.  133. — Courts  of  oiiginal  jurisdiction  may  fine  jury 
men,  sheriffs,  constables,  and  the  otlicr  officers  attached  to  the 
courts,  when  they  fail  to  attend,  or  neglect  their  duty  ;  but 
the  fine  cannot  exceed  fifteen  dollars,  for  each  offence  of  that 
description. 

Art.  134. — Those  courts  may  enforce  the  personal  attend- 
ance of  witnesses  before  them,  by  having  them  pro})erly  sum- 
moned for  that  purpose  ;  pro\'ided  they  reside  in  the  parish 
where  the  court  is  held. 

Art.  135. — If  a  witness,  who  has  been  duly  summoned  in 
a  suit,  fail  to  appear  personally,  the  court  may  order,  at  the 
request  of  either  of  the  parties,  that  he  be  brought  by  attach- 
ment before  them  ;  and  if  he  does  not  show  good  cause  for 
not  having  obeyed  the  summon,  the  court  may  fine  liim  in  a 
sum  not  exceeding  one  hundred  dollars. 

No.  275,  Stat.  April  30th,  1853,— §  1.  Any  witness  who 
may  have  been  summoned  to  attend  any  of  the  courts  of  this 
State  to  testify  in  a  civil  case,  and  shall  have  attended,  claim- 
ed, and  received  a  certificate  therefor,  shall  not  again  be 
compelled  to  obey  any  summons  for  attending  said  court  in 
said  case  at  a  subsequent  term,  until  he  be  paid,  or  the  money 
tendered  to  him,  upon  demand  by  the  said  witness  of  the  party 
whom  he  was  summoned,  or  in'^liis  absence,  of  his  agent  or 
his  attorney. 

Art.  136. — If  a  witness  summoned  in  a  cause,  refuse  to 
answer  any  questions  put  to  him,  except  such  as  might  lead 
him  to  accuse  himself  of  some  crime,  the  court  may  fine  such 
witness  in  a  sum  not  exceeding  two  hundred  and  fifty  dollars, 
and  imprison  him  for  a  term  not  exceeding  thirty  days. 

Art.  137. — The  party  aggrieved  by  the  refusal  of  a  witness 
to  answer  the  questions  -put  to  him,  has,  besides,  his  action 
of  damage  for  the  loss  he  may  have  sustained  tlu-ough  his 
refusal. 

Art.  138. — Courts  may,  at  the  request  of  the  parties,  ad- 
dress commissions  to  judges  of  other  courts,  justices  of  the 


OF    COUKTS    OF    ORIGINAL   JURISDICIION.  101 

peace,  or  other  persons,  to  take  the  deposition  of  witnesses,  or 
the  answers  to  the  interrogatories  of  the  parties,  residing  out 
of  the  parish  where  such  courts  are  held  ;  and  even  of  witness- 
es residing  witliin  the  parish,  when  they  are  old  and  infirm,  or 
expected  to  leave  the  State,  The  formalities  to  be  observed 
in  such  cases  are  hereafter  provided. 

9  L.  242 ;  18  L.  59 ;  See  art.  439. 

Art,  139, — Courts  may  likewise,  at  the  request  of  either 
of  the  parties,  order  that  the  other  shall  bring  into  court  the 
object  in  dispute,  of  which  he  is  in  possession,  if  it  be  a  slave, 
or  such  movable  property  as  can  be  produced,  in  order  that 
it  may  be  shown  by  testimony,  that  it  is  in  reality  the  object 
claimed  ;  and  if  the  party  refuse  to  comply  with  the  order, 
that  refusal  shall  be  considered  as  full  proof  of  the  identity  of 
the  object. 

Art.  140, — Courts  may  also  at  the  request  of  one  of  the 
parties,  decree,  that  the  other  party  bring  into  court  the  books, 
j)apers,  and  other  documents,  which  are  in  his  possession,  and 
which  are  material  in  the  cause,  provided  the  party  requesting 
their  production  declares  in  writing,  and  on  oath,  what  are  the 
facts  he  intends  to  establish  by  such  books,  papers,  or  other 
documents  ;  and  on  the  refusal  of  the  party  thus  called  upon 
to  comply  with  the  order  of  the  court,  the  facts  stated  and 
sworn  shall  be  considered  as  having  been  confessed,  until 
satisfactory  evidence  be  shown  of  the  impossibility  of  produc- 
ing such  documents, 

1  L.  205 ;  10  L.  103 ;  3  K.  227 ;  4  R.  15 ;  8  R.  6. 

Art.  141. — Courts  may  also,  at  the  request  of  either  of 
the  parties  in  a  suit,  order  a  third  person,  having  in  his  pos- 
session papers,  titles,  acts,  or  documents,  which  may  be  im- 
portant in  the  decision  of  a  cause,  to  bring  them  into  court, 
on  the  day  fixed  for  the  trial. 

18  L.  4G1, 

Art,  142, — ^Nevertheless,  notaries  are  not  bound  to  pro- 
duce the  record  of  acts  passed  before  them,  of  which  authentic 


102  OF    THE    ORDINARY    PROCEEDINGS, 

copies  may  be  obtained,  except  when  it  is  necessary  to  prove 
the  genuineness  of  the  signatures  affixed  to  them. 

Art.  143. — When  a  party  or  a  third  i)erson  has  been  or- 
dered to  produce  some  books,  deeds,  or  other  documents,  he 
must  deliver  them  prenous  to,  or  on  the  day  fixed  for  the 
trial,  to  the  clerk  of  the  court,  who  shall  receipt  for  them, 
have  charge  of  them,  and  return  them  again  to  the  party  to 
whom  they  belong,  after  the  cause  shall  have  been  decided. 

Art.  144. — Courts  have  tlie  power  to  order  the  arrest  and 
imprisonment  of  the  parties,  attachment  in  the  hands  of  tliird 
persons,  sequestration,  execution,  and  sale  of  their  property, 
in  the  manner,  and  in  the  cases  hereafter  provided  ;  they  pos- 
sess, besides,  the  other  powers  specially  delegated  to  them  by 
the  provisions  of  the  present  code. 

2  L.  255. 

Art.  145. — The  courts  are  authorized  to  enact,  respective- 
ly, rules  establishing  the  mode  of  proceeding  before  tliem,  in 
all  cases  not  provided  by  tliis  code,  provided  the  same  be  not 
contrary  to  the  rules  here  prescribed. 

11  L.  124. 


CHAPTER  II. 

OF  THE  ordinary  proceedings. 

Art.  14G. — The  word  proceeding,  in  its  general  accepta- 
tion, means,  the  form  in  which  actions  are  to  be  brought  and 
defended,  the  manner  of  intervening  in  suits,  of  conducting 
them  ;  the  mode  of  deciding  them,  of  opposing  judgments, 
and  of  executing  them. 

The  forms  are  different,  in  ordinary,  executory,  and  sum- 
mary proceedings. 


OF    DEMAND,    AND    OF    CUMULATED    ACTIONS.  103 


Sec.  I. — Of  Demand,  and  of  Cumulated  Actions. 

Art.  147. — A  demand  means  a  civil  action  brought  before 
a  court  of  justice,  to  obtain  a  thing  to  which  one  thinks  liim- 
self  entitled. 

Art.  148. — Separate  actions  may  be  cumulated  in  the 
same  demand,  except  in  the  cases  hereafter  expressed  ;  this  is 
termed  mimdation  of  action. 

Art.  149. — The  plaintiff  is  not  allowed  to  cumulate  seve- 
ral demands  in  the  same  action,  when  one  of  them  is  contrary 
to,  or  precludes  another. 

As  when  one  has  bought  a  tiling  in  the  name  of  another, 
and  with  his  funds,  without  his  authorization  ;  the  person,  for 
whom  the  purchase  has  been  made,  cannot  demand,  by  the 
same  action,  both  the  thing  bought  in  his  name,  and  the 
money  employed  for  paying  the  price. 

Nor  can  a  vendor  demand,  at  the  same  time,  the  rescission 
of  the  sale  he  has  made,  and  the  price  for  which  it  was  made  ; 
he  must  decide  for  one  or  the  other  of  the  two  causes  of  ac- 
tion, as  the  one  precludes  the  other. 

1  N.  S.  439 ;  2  K  S.  323 ;  6  N.  S.  39 ;  7  N.  S.  403 ;  8  N.  S.  334 ;  1  L.  139; 
4L.  353,360;  5  L.  440  ;  8L.  2G7;  13  L.  582;  14  L.  279;  15  L.  78,199;  16  L.  384  ; 
6  R.  520;  11  R.  87 ;  12  R.  188;  2  A.  158;  3  A.  366. 

Art.  150. — In  possessory  actions,  one  cannot  claim,  at 
the  same  time,  both  the  possession  and  the  ownershij),  if  the 
two  are  demanded  ;  it  shall  be  presumed  that  the  posses- 
sory has  been  rehnquished,  in  order  to  resort  to  the  petitory 
action. 

16  L.  380. 

Art.  151. — If  the  plaintiff  has  several  causes  of  action, 
tending  to  the  same  conclusion,  not  contrary  to,  nor  exclusive 
of  each  other,  though  they  arise  from  different  contracts,  he 
may  cumulate  and  bring  them  in  the  same  suit,  as,  for  exam- 
ple, if  one  claim  from  another  one  hundred  dollars  in  virtue 
of  a  sale,  and  one  thousand  dollars  in  virtue  of  a  loan,  or  if 


104  OF    DEMAND,    AND    OF    CUMULATED    ACTIONS. 

he  claim  a  slave  from  another,  both  by  inheritance  and  by 
purchase. 

6  N.  S.  392;  8  N.  S.  333,  438;  1  L.  131 ;  5  L.  437 ;  8  L.  267. 

Art.  152. — When  two  causes  of  action,  contrary  to,  and 
exclusive  of  each  other,  liavc  been  cumulated  in  the  same  de- 
mand, the  defendant  may  refuse  to  plead  to  the  merits,  until 
the  plaintiff  have  made  his  choice  as  to  which  of  the  two  he 
means  to  proceed  with  ;  and  if  the  exception  be  sustained  by 
the  court,  the  plaintiff  shall  be  bound  to  amend  his  petition, 
60  as  to  preserve  only  one  cause  of  action,  otherwise  liis  suit 
shall  be  dismissed  with  costs. 

G  X.  S.  392 ;  7  N.  S.  403 ;  15  L.  195  ;  3  A.  365. 

Art.  153. — Demands  are  principal  or  incidental. 
The  principal  demand  is  that  by  which  the  suit  is  com- 
menced in  court  ;  and  for  this  reason  it  is  also  termed  ordi- 
nary demand. 

An  incidental  demand  is  that  which  is  made  before  issue 
joined,  in  order  to  obtain  something  relating  to  the  principal 
object  of  the  suit ;  such  are  demands  in  warranty  or  in  inter- 
vention. 

17  L.  176;  6R.  466. 

Art.  154. — The  principal  demand  must  be  brought  before 
the  court  which  has  the  jurisdiction  of  the  case. 

The  incidental  demand  must  be  decided  at  the  same  time 
with  the  principal ;  it  is  subject  to  the  same  jurisdiction  as 
the  suit  itself 

17  L.  176;  6  R.  4GG. 

Art.  155. — One  should  only  demand  in  court  what  is 
really  due  to  him  ;  nevertheless,  if  one  demand  more,  the  ac- 
tion shall  be  sustained  for  the  amount  actually  due,  and  the 
defendant  shall  pay  the  costs,  unless  he  prove,  that  previous  to 
the  suit  he  made  a  real  offer  of  the  amount  actually  due  to  the 
plaintiff,  with  the  interest,  and  the  cost  which  had  accrued. 

Art.  156. — If  one  demand  less  than  is  due  him,  and  do 
not  amend  his  petition,  in  order  to  augment  liis  demand,  he 
shall  lose  the  overplus. 

14  L.  140  ;  2  R.  207  :  Ante  91, 


OF    DEMAND,    AND    OF    CUMULATED    ACTIONS.  105 

Art.  157. — If,  in  an  action  of  debt,  the  plaintiff  fail  to 
claim  the  interest  due  to  liim,  or  to  amend  his  petition  in 
order  to  include  it,  he  cannot,  after  judgment,  demand  such 
interest  by  another  action  ;  he  shall  be  considered  as  having 
remitted  it. 

But  as  relates  to  the  costs  of  the  suit,  it  is  not  required 
that  they  should  have  been  claimed  in  the  petition  or  answer, 
in  order  to  recover  them  ;  they  arc  due  to  him  in  favor  of 
whom  the  judgment  has  been  rendered,  even  if  notliing  is  said 
on  the  subject  in  the  judgment. 

17  L.  331 ;  1  R.  469;  12  R.  194;  6  A.  297. 

Art.  158. — When  the  demand  is  premature,  that  is  to  say, 
when  the  action  has  been  brought  before  the  debt  had  become 
due,  the  suit  must  be  dismissed,  leaving  to  the  party  his  right 
to  bring  his  action  in  due  time. 

The  same  rule  must  be  observed,  if  the  object  due  be  de- 
manded out  of  the  place  where  it  was  to  have  been  delivered, 
or  if  the  obligation  be  conditional,  and  its  execution  be  de- 
manded before  the  condition  has  been  fulfilled. 

1  L.  504;  8  L.  589;  11  L.  420;  13  L.  403. 

Art.  159. — Judicial  demands  are  either  verbal  or  in  writ- 
ing. 

It  is  only  before  justices  of  the  peace  that  demands  may 
be  made  verbally,  as  will  be  provided  in  the  rules  to  be  ob- 
served for  proceeding  before  the  tribunals  of  justices  of  the 
peace. 

All  other  demands  brought  before  the  courts,  must  be  in 
writing,  and  in  the  form  of  petition. 

Art.  160. — Though  there  be  as  many  kinds  of  demands  as 
there  are  actions,  those  which  must  be  made  in  writing  are 
subject  to  no  distinct  and  peculiar  form  ;  they  are  only  sub- 
jected to  a  few  general  and  common  rules,  hereafter  pro- 
vided. 

13  L.  416. 

Art.  161. — It  is  sufficient  ir^all  judicial  demands,  which 


106  BEFORE    WHAT    TRIBUNALS    ACTIONS 

are  required  to  be  in  writinj:^,  to  express  clearly  what  is  de- 
manded, with  such  conclusions  as  may  serve  as  a  basis  to  the 
judgment  to  be  rendered  in  the  cause. 

Sec.  II. — Before  lohat  tribunals  actions  are  to  he  brour/Jit. 

Art.  162. — It  is  a  general  rule  in  civil  matters,  that  one 
must  be  sued  before  his  own  judge,  that  is  to  say,  before  the 
judge  having  jurisdiction  over  the  jjlace  where  he  has  his  do- 
micil,  or  residence  ;  but  that  rule  is  subject  to  several  excep- 
tions. 

8  N.  S.  252  ;  2  L.  29,  224,  280  ;  3  L.  125  ;  8L.  213,  524  ;  9  L.  549  ;  11  L.  1"78  ;  14 
L.  124;  3  R.  7,  26,  411;  6  R.  6,406;  1  A.  78. 

Art.  163. — In  actions  of  revendication  of  real  property, 
or  when  proceedings  are  instituted,  in  order  to  obtain  the 
seizure  and  the  sale  of  real  projjcrty,  in  virtue  of  an  act  of 
hypothecation,  importing  confession  of  judgment,  the  defend- 
ant may  be  cited,  whether  in  tlic  first  instance,  or  in  appeal, 
either  witliin  the  jurisdiction  where  the  property  revendicated 
•or  hypothecated  is  situated,  though  he  has  his  domicil  or  resi- 
dence out  of  that  jurisdiction,  or  in  that  where  the  defendant 
has  his  domicil,  as  the  plaintiff  chooses. 

2  N.  S.  375  ;  3  N.  S.  654 ;  4  N.  S.  188 ;  2  L.  223 ;  4  L.  240 ;  G  R.  460 ;  9  R.  549 
11  R.  387;  3  A.  637. 

Art.  164. — In  matters  relative  to  successions,  the  defend- 
ants, though  domiciliated  elsewhere,  must  be  cited  to  appear 
before  the  court  of  the  place  where  the  succession  has  been 
opened  : 

1.  In  all  suits  brought  by  the  heirs  against  each  other,  un- 
til after  partition,  inclusively  ; 

2.  In  all  suits  brought  by  the  creditors  of  the  deceased, 
previous  to  the  partition  ; 

3.  In  all  suits  relating  to  the  execution  of  testamentary 
dispositions,  until  the  final  settlenieut  of  the  affairs  of  the  es- 
tate has  been  effected.  « 


ARE    TO    BE    BROUGHT.  107 

Art.  165.  There  are  other  exceptions  to  this  rule,  wliich 
require  that  the  defendant  be  sued  before  the  judge  having  ju- 
risdiction over  the  place  of  his  domicil  or  residence  ;  they  are 
here  enumerated  : 

1.  In  matters  relative  to  the  partition  of  real  property  be- 
tween several  co-proprietors  ;  for  in  such  a  case  tlie  suit  must 
be  brought  before  the  court  of  the  place  where  such  property  is 
situated,  though  the  co-proprietors  may  reside  in  different 
parishes  ; 

2.  In  matters  relative  to  partnership ;  as  long  as  the  part- 
nership continues,  in  all  suits  concerning  it,  the  parties  must 
be  cited  to  appear  before  the  tribunal  of  the  place  where  it  is 
established,  or  if  there  are  several  estabhshments,  before  that 
of  the  i^lace  where  the  obligation  was  entered  into  ; 

3.  In  matters  relative  to  failure,  all  the  suits  already  com- 
menced, or  which  may  be  subsequently  instituted  against  the 
debtor,  must  be  carried  before  the  court  in  which  the  failure 
has  been  declared  ; 

13  L.  423 ;  17  L.  87 ;  2  R.  348;  9  R.  45 

4.  In  matters  relative  to  warranty,  they  must  be  carried 
before  the  court  having  cognizance  of  the  principal  action  in 
which  demands  in  warranty  arise  ; 

5.  In  matters  relative  to  judicial  costs,  or  to  the  fees  of 
advocates,  the  suit  instituted  for  their  recovery  must  be 
'brought  before  the  court  where  they  have  been  incurred  ; 

6.  When  the  defendants  are  foreigners,  or  have  no  fixed 
or  Imown  place  of  residence  in  the  State,  they  may  be  cited 
wherever  they  are  found. 

Stat.  1th  April,  1826,  p.  168.— §  2.  Number  five  of  ar- 
ticle one  hundred  and  sixty-five,  be  and  the  same  is  hereby 
repealed,  and  that  suits  for  the  recovery  of  the  debts  therein 
mentioned  may  be  brought  before  any  court  of  competent 
jurisdiction. 

4  R.  342. 

Art.  166. — If  a  defendant  reside  alternately  in  different 
parishes,  he  must  be  cited  in  that  in  which  he  appears  to 
have  his  ])rincipal  establishment,  or  his  habitual  residence. 


108  OF    PETITION    AND    CITATION. 

K  his  residence  in  each  appear  to  be  nearly  of  the  same 
nature,  in  such  a  case  he  may  be  cited  in  either,  at  the  choice 
of  the  plaintiff,  imless  he  has  declared,  jjursuant  to  the  i)rovi- 
sion  of  the  law,  in  which  of  those  parishes  he  intended  to 
have  his  domicil. 

9  R.  243;  1  A.  78;  4  A.  553. 

Art.  1G7. — If  the  defendant  change  his  domicil,  he  must 
be  cited  in  the  parish  where  he  has  resided  wdthin  the  last 
year,  or  within  that  where  he  has  declared,  in  the  manner  pre- 
scribed by  law,  that  he  intended  to  have  his  domicil. 

Art.  168. — If  the  defendant  has  not  made  such  a  declara- 
tion, he  may,  nevertheless,  be  cited  in  the  parish  where  he 
lives,  though  he  has  not  resided  one  whole  year  in  it,  if  he  has 
done  in  that  parish  acts  which  manifest  sufficiently  that  he 
intended  to  make  it  the  place  of  liis  domicil, 

11  L.  179. 


Sec.  III. — Of  Petition  and  Citation. 

Art.  169. — It  is  not  necessary,  previous  to  bringing  a  suit, 
to  make  an  amicable  demand  in  writing. 

Stat.  20th  March,  1839,  p.  162.— §  1.  When  the  defendant 
resides  out  of  the  State,  or  when  the  suit  is  commenced  by 
arrest  or  attachment,  an  amicable  demand  shall  in  no  case  be 
necessary. 

7  N.  S.  294;  8  N.  S.  117  ;  1  L.  209,420 ;  4  L.  105,204 ;  6  L.  CG7,715 ;  7  L.  270; 
8L.  110;  11  L.  76. 

Art.  170. — Every  demand  in  writing  must  be  commenced 
by  a  petition. 

1  N.  S.  200 ;  4  N.  S.  001 ;  7  K  S.  444 ;  3  A.  434. 

Art.  171. — A  petition  is  a  written  document,  which  the 
plaintiff  addresses  to  a  competent  judge,  setting  forth  the 
cause  of  the  action  which  he  intends  to  bring  against  the  de- 
fendant, and  praying  to  be  permitted  to  cite  th,at  defendant 


OF    PETITION    AND    CITATION.  109 

before  him,  in  order  that  he  may  be  ordered  to  do  or  to  give 
a  certain  thing. 

See  3  N.  S.  28G  ;  7  N.  S  300;  3  L.  348,350;  4  L.  117  ;  11  L.  255. 

Art.  172. — The  petition,  when  either  party  speaks  the 
French  hmguage  as  a  mother  tongue,  must  be  drawn  both  in 
the  French  and  Enghsh  languages,  and  it  must  mention  the 
name  or  title  of  the  court  to  which  it  is  addressed  : 

1.  The  name,  surname,  and  the  place  of  residence  of  the 
plaintiff ; 

2.  The  name,  and  the  place  of  residence  of  the  defendant, 
or  the  place  where  he  lives  ; 

3.  The  petition  must  contain  a  clear  and  concise  state- 
ment of  the  object  of  the  demand,  as  well  as  of  the  nature  of 
the  title,  or  the  cause  of  action  on  which  it  is  founded  ; 

4.  It  must  not  contain  any  insulting  or  impertinent  ex- 
pression ; 

5.  It  must  end  by  conclusions  analogous  to  the  nature  of 
the  action  to  which  the  plaintiff  has  resorted  ; 

6.  It  must  be  signed  by  the  plaintiff  or  his  attorney  in 
fact,  or  by  his  advocate. 

1  N.  S.  202 ;  2  N.  S.  85,358,626 ;  3  N.  S.  167,286,640 ;  4  N.  S.  178,282 ;  5  N.  S. 
39,78,693;  6  N.  S.  9,88,127,242,417,649;  7  N.  S.  228,260,356,366,401,573; 
8  N.  S.  437,467,704;  1  L.  35,214;  3  L.  255,292,359;  4  L.  117;  6  L. 
16,142,594;  7  L.  413,599;  8  L.  298  ;  9  L.  280;  10  L.  219;  11  L.  157,508;  12  L. 
254,401,459,521,587;  13  L.  493;  14  L.  190;  }7  L.  604;  1  R.  20,190,242,335, 
449,533  ;  4  R,  257  ;  12  R.  138  ;  2  A.  145,366,655. 

Art.  173. — If  the  plaintiff  demand  a  specific  object,  he 
must  describe  it  with  certainty  in  his  petition,  in  such  a  man- 
ner as  to  leave  no  doubt  as  to  the  object  demanded. 

3  A.  223. 

Art.  174. — When  the  action  is  founded  on  a  notarial  or 
public  act,  an  authenticated  copy  must  be  annexed  to  the  pe- 
tition, in  order  that  it  may  be  communicated  to  the  defendant, 
if  he  require  it. 

2  L  133. 

Art.  175. — But  if  the  title  on  which  the  demand  is  found- 


110  OF    TETITION    AND    CITATION. 

ed,  be  an  act  under  private  signature,  or  a  note  bearing  the 
signature  of  the  defendant,  the  original  of  sucli  an  act  or  the 
note  itself,  must  be  annexed  to  thc*f)ctition,  in  order  that  the 
defendant  may  be  enabled,  either  to  avow  or  deny  the  sig- 
nature. 

Nevertlieless,  it  is  not  necessary  to  serve  on  the  defendant, 
copies  of  the  acts  or  documents  annexed  to  the  petition. 

Stat.  7th  Aj^ril,  182G,  p.  168.— §  2.  That  so  much  of  ar- 
ticle one  hundred  and  seventy-five  as  requires  the  original  of 
an  act  or  note  under  private  signature  to  be  annexed  to  the 
petition  be  repealed,  provided  that  if  the  defendant  jiray  a 
view  or  oyer  of  the  document  declared  upon,  the  court  shall 
ord^^he  same  to  be  filed  -within  a  reasonable  delay,  and  in 
dcmilt  o/*  the  plaintiiF's  complpng  with  said  order  liis  petition 
shXU  be  dismissed, 

/  3  A.  223  ;  4  A.  296. 

Art.  176. — The  petition,  together  with  all  the  annexed 
documents,  must  be  delivered  to  the  clerk  of  the  court  to 
which  it  is  addressed,  who  shall  receive  it,  and  indorse  im- 
mediately, the  date  of  the  day,  month,  and  year,  when  he  re- 
ceived it. 

Art.  177. — The  defendant  or  his  attorney,  may  agree, 
that  the  plaintiff's  petition  be  drawn  only  in  English  ;  he  may 
Ukewise  waive  the  service  of  it,  provided,  in  the  latter  case, 
the  defendant,  or  his  attorney,  certify  in  writing,  and  under 
his  signature,  on  the  back  of  the  original  delivered  to  the 
clerk,  that  he  acknowledges  that  the  petition  has  been  duly 
served  on  him  ;  in  such  case,  the  clerk  shall  not  be  entitled  to 
charge  for  a  copy,  n<ft  the  sheriff  for  citation. 

2i.  313;  C  11.  142;  2  A.  839. 

Art.  178. — The  clerk,  to  whom  the  petition  has  been  de- 
hvered,  must,  except  in  the  case  above  expressed,  make  out  a 
faithful  and  cxaiit  copy  of  the  same,  in  the  language  or  lan- 
guages in  which  it  was  presented,  in  order  that  it  may  be 
served  on  the  defendant,  and  he  must  annex  to  that  copy,  a 


/ 


OF    PETITION    AND    CITATION  111 

citation  addressed  to  the  defendant,  in  the  fonn  prescribed  in 
the  following  article : 

4  K  S.  430;  4  L.  157. 

Art.  179. — The  citation  addressed  to  the  defendant,  must 
be  drawn  in  French  and  in  English  ;  it  must  mention  : 

1.  The  title  of  the  cause  ; 

2.  The  name  of  the  defendant,  to  whom  it  is  addressed, 
the  place  of  his  residence,  or  that  where  he  happens  to  be,  in 
the  manner  set  forth  in  the  petition ; 

3.  The  name  or  the  title  of  the  court  before  which  the 
defendant  is  cited  to  appear  ; 

4.  It  must  summon  the  defendant,  either  to  comply  with 
the  demantl  contained  in  the  petition,  of  wliicli  a  copy  accom- 
panies the  citation,  or  to  deliver  his  answer  to  the  petition  in 
the  office  of  the  clerk  of  the  court,  in  which  he  is  cited  to  ap- 
pear. The  place,  where  such  office  is  lield,  miist  be  ex- 
pressed. 

5.  The  citation  must  express  the  number  of  days  given  to 
the  defendant  to  file  his  answer,  according  to  the  distance 
from  his  residence  to  the  place  where  the  court  is  held,  to  be 
reckoned  from  the  day  when  tlie  citation  was  sei-ved  ; 

6.  It  must  express  the  date  of  the  day,  month,  and  year, 
when  it  was  delivered  ; 

7.  It  must  be  signed  by  the  clerk  who  delivers  it,  and  ex- 
press his  quality  ;  it  must  be  sealed  with  the  seal  of  the 
court  by  whose  order  it  is  given. 

Stat.  Ith  Aj^ril,  1826,  p.  168.— §  3.  That  the  English 
text  of  article  one  hundred  and  seventy-nine  be  so  amended 
as  to  correspond  with  the  French,  and»  that  it  shall  not  be 
necessary  to  serve  a  citation  and  petition  in  the  French  as 
well  as  English  language,  except  when  the  mother  tongue 
of  the  defendant  is  French. 

3  L.  476  ;  12  L.  9;  1  R.  so  ;  3  R.  155  ;  4  R.  257  ;  6  R.  9  ;'lO  R.  26  ;  2  A.  140,145. 

Art.  180. — The  delay  to  be  expressed  in  the  citation, 
consists  of  ten  days,  to  be  counted  from  the  time  the  citation 


112  OF    PETITION    AND    CITATION, 

has  been  served,  which  arc  allowed  to  the  defendant  to  comply 
with  the  demand  of  the  petition,  if  the  defendant  reside  in 
the  place  where  the  court  is  held,  or  within  ten  uiiles  from  such 
place. 

If  the  defendant  reside  at  a  greater  distance,  the  aforesaid 
delay  shall  be  increased  by  one  day  for  ever}'  ten  miles  that 
his  residence  is  distant  from  the  place  of  holding  the  court 
before  which  he  is  cited  to  appear. 

In  counting  the  ten  days,  neither  the  day  when  the  cita- 
tion has  been  served,  nor  the  day  when  the  delay  expires,  are 
included. 

2  N.  S.  212;  4  L.  220;   15  L.  186;  12  R.  41. 

Art.  181. — If  there  are  two,  or  more  defendants  to  the 
suit,  the  clerk  shall  make  out  as  many  copies  of  the  petition 
as  there  are  defendants  in  the  cause,  whether  they  all  reside  in 
the  i^arish  where  the  court  is  held,  or  in  diiferent  parishes, 
even  if  these  be  out  of  the  jurisdiction  of  that  court. 

8  N.  S.  250 ;  3  L.  280. 

Art.  182. — Nevertheless,  if  the  defendants  arc  husband 
and  wife,  or  minors,  interdicted,  or  absent  persons,  having  the 
same  curator,  or  persons  represented  by  the  same  attorney  in 
fact,  or  partners  of  the  same  firm,  or  members  of  the  same 
corporation,  it  will  be  sufficient  to  deliver  one  single  citation, 
and  one  single  copy  of  the  petition,  to  the  person  representing 
Buch  defendants. 

C  R.  4. 

Art.  183. — The  clerk  must  address,  without  delay,  the 
copy  of  the  citation  and  of  the  petition,  intended  to  be  served 
on  the  defendant,  to  the  sheriff  of  the  parish  where  that  de- 
fendant resides. 

See  2  L.  313. 

Art.  184. — If  among  the  defendants,  there  be  some  who 
reside  out  of  the  jurisdiction  of  the  court,  before  which  the 
suit  is  pending,  the  clerk  must  address  to  the  sheriffs  of  the 
different  parishes  where  they  reside,  copies  of  the  citation  and 


OF    PETITION   AND    CITATION.  113 

petition,  intended  for  such  defendants,  in  order  that  they  may 
be  served  on  them,  and  such  return  made  of  the  service  as  is 
hereafter  provided. 

Art.  185. — The  sheriff,  to  whom  the  clerk  delivers,  or  ad- 
dresses copies  of  a  petition  and  citation,  to  be  served  on  a 
defendant,  in  the  manner  above  provided,  shall  indorse  upon 
the  same  a  certificate  of  the  day,  month,  and  year,  Avhen 
those  documents  have  been  received  by,  or  delivered  to  him. 

3  R.  1. 

Art.  186. — The  sheriff  must  serve  those  copies,  ANathout 
any  delay,  on  the  defendant  named  in  the  citation  ;  and  when 
there  arc  several  defendant  to  the  same  suit,  he  must  make 
as  many  services  as  there  are  citations,  always  conforming,  in 
either  case,  with  the  provisions  hereafter  enacted. 

Art.  187. — The  citation,  and  the  petition  accompanying 
it,  may  be  served  in  two  different  ways,  by  being  dehvered  to 
the  defendant. in  person,  or  by  being  left  at  his  domicil. 

Art.  188. — The  sei-vice  is  made  in  person,  when  the  cita- 
tion and  petition  are  delivered  to  himself 

Art.  189. — It  is  made  at  the  domicil,  when  copies  of  the 
citation  and  petition  are  left,  at  the  usual  place  of  domicil, 
or  residence  of  the  defendant,  if  he  be  absent,  by  dehvering 
them  to  a  free  person,  apparently  above  the  age  of  fourteen 
living  in  the  house. 

6  R.  86;  3  A.  130;  4  A.  363. 

Art.  190.— The  petition  and  citation,  must  be  served  on 
the  defendant  in  person,  or  left  at  his  domicil,  in  the  manner 
provided  in  the  two  preceding  articles,  in  all  cases  where  the 
defendant  is  of  age,  enjoys  civil  rights,  is  present  in  the  place, 
or  has  there  his  acknowledged  domicil  or  residence. 

Art.  191. — But  if  the  defendant  be  U  minor,  a  person  in- 
terdicted or  absent,  or  a  married  woman,  or  if  the  suit  be 
brought  against  the  members  of  a  corporation,  of  a  public  in- 
stitution, or  of  a  commercial  partnership  ;  the  petition  and 
8 


114  OF    PETITION    AND    CITATION. 

I 

citation  must  be  served,  in  tlie  manner  hereafter  provided,  in 
the  following  articles. 

Art.  192. — If  the  petition  and  citation  be  directed  against 
a  married  woman,  not  separated  from  bed  and  board  from  her 
husband,  the  servdce  may  be  made  by  dehvering  to  either  the 
husband  or  the  wife,  or  by  leaving  them  at  the  domicU  of  the 
latter,  by  delivering  the  same  to  a  free  person  apparently  above 
the  age  of  fourteen  years,  living  in  their  house. 

6  R.  4. 

Art.  193. — But  if  the  woman  be  separated  from  bed  and 
board,  or  divorced  from  her  husband,  the  service  must  be  made 
as  if  sole. 

Art.  194. — If  the  suit  be  brought  against  minors  not 
emancipated,  interdicted  or  absent  persons,  whose  pro^jcrty  is 
administered  by  a  curator,  then  the  petition  and  citation  must 
be  served,  either  by  delivery  in  person  to  the  tutor  or  curator 
of  such  minors,  interdicted  or  absent  persons,  or  by  leaving 
them  at  the  usual  place  of  domicil  or  residence  of  such  tutor 
or  curator. 

6  R.  142  ;    2  A.  6G2. 

Art.  195. — If  the  minors,  the  interdicted,  or  absent  per- 
sons, against  whom  the  suit  is  brought,  had  no  tutor  or  cura- 
tor, and  the  plaintiff  has  had  a  sj^ecial  curator  aj^iiointcd  to 
defend  them  in  the  suit,  the  service  must  be  made  on  that  cu- 
rator in  person  ;  or  at  his  domicil. 

4L.  157;  OR.  112;    2  A.  5G2. 

Art.  196. — Nevertheless,  if  the  person  absent  has  an  at- 
torney in  fact,  whose  name  ajipears  in  the  petition,  the  sheriff 
shall  seiTC  the  same  on  that  attorney  in  fact,  in  person,  or  at 
his  domicU. 

8  N.  S.  235 ;  3  A.  136. 

Art.  197. — When  the  suit  is  brought  against  an  emanci- 
pated minor,  the  sheriff  must  serve  the  citation  and  petition 
on  such  minor,  in  person,  or  at  liis  domicU,  unless  he  be  absent 
from  the  State,  in  which  case,  they  must  be  served  on  the  cu- 


OF    PETITION    AND    CITATION.  115 

rater  ad  litcs  of  such  minor,  if  he  have  one,  or  on  the  special 
curator  appointed  to  defend  the  minor  in  the  suit,  or  at  the 
domicil  of  that  curator. 

Art.  198. — When  a  suit  is  brought  against  a  corporation, 
a  public  institution,  or  against  jiersons  associated  in  ordinary 
partnership,  the  service  must  be  made  as  follows  : 

In  suits  against  the  corporations  of  cities,  and  of  other 
places,  on  the  mayor  in  jierson,  or  on  any  other  officer  exercis- 
ing similar  functions,  or  in  liis  absence,  at  the  place  where 
he  holds  his  office,  by  delivery  to  some  of  the  officers  em- 
ployed there  ; 

In  suits  against  banking  establishments,  on  their  president 
in  person,  or  at  the  house  where  the  bank  is  kept,  by  dcliveiy 
to  the  teller,  or  in  his  absence,  to  some  other  officer  of  the  es- 
tabhshment  ; 

In  suits  against  other  civil  or  religious  corporations,  or 
public  institutions,  on  their  president  in  person,  or  at  their 
office,  if  they  hold  such,  in  permanence,  by  deUvery  to  some 
of  their  agents  ; 

In  suits  against  any  commercial  association,  trading  under 
a  title,  or  as  a  firm,  on  any  of  the  partners,  in  person,  or  at 
their  store  or  counting-house,  by  delivery  to  their  clerk  or 
agent. 

No.  174.  Stat.  25th  April,  1853.— §  2.  In  all  cases 
where  any  corporation  shall  commit  such  trespass,  or  do  any 
thing  for  which  an  action  lies,  it  shall  be  liable  to  be  sued  in 
the  parish  where  such  damage  is  done  or  trespass  committed. 

1  K  S.  619;  8  N.  S.  147;  3  L.  251,515;  4  L.  107;  10  L.  489;  7  R.  650; 
11  R.  47;   1  A.  146;   2  A.  897. 

Art.  199. — If  the  suit  has  been  brought  against  the  cap- 
tain or  master  of  a  ship,  or  other  vessel,  or  against  some  one 
forming  part  of  the  crew  of  such  ship  or  vessel,  ha^•ing  no 
domicil  or  residence  in  the  State,  the  petition  and  citation 
must  be  served,  either  on  the  defendant  in  person,  or  on  board 
of  the  ship  or  vessel  in  which  he  is  employed,  by  dehvery  to 


116  OF    PETITIONsAND    CITAXbSN. 

NX  V 

any  fr©e  person,  apparently  abo\T3  the  age  of  fourteen,  belong 
to  the  crew  of  that  ship  or  vessel. 

3  L.  lol;  5  L.  332. 

Art.  200? — When  the  sheriff  shall  notify  the  defendant, 
of  the  suit  brought  against  him,  in  some  of  the  modes  above 
provided,  he  must  make  his  return  in  Amting,  on  the  hack  of 
the  original  Qitation  delivered  to  him,  stating  in  what  manner 
this  notification  has  been  effected,  conformably  to  the  follow 
ing  jirovisions. 

3  L.  251,476;  5  L.  287. 

Art.  201. — If  the  service  was  made  at  the  domicil  of  the 
defendant,  by  dehvery  to  a  tliird  person,  the  sheriff  must  state, 
in  his  return  : 

1.  Where  the  domicil,  or  the  house  inhabited  by  the  de- 
fendant, is  situated  ; 

2.  The  name  of  the  free  person  on  whom  the  sendee  was 
made,  whether  such  person's  name  was  laio\NTi  to  liim,  or  whe- 
ther he  learned  it  by  interrogating  that  person  ;  or  in  the 
latter  case,  if  the  person  refused  to  tell  his  name,  the  return 
must  mention  that  circumstance. 

Art.  202. — The  same  formaUties,  which  are  prescribed  in 
the  preceding  articles,  must  be  obsen'cd  by  the  sheriff,  in  serv- 
ing citation  at  the  office  of  chartered  banks,  or  other  public 
institutions,  or  at  the  counting-house  of  commercial  estabhsh- 
ments,  or  on  board  of  ships  or  vessels.  \ 

Art.  203. — The  return  of  the  sheriff,  must  state  the  day, 
.month  and  year,  when  the  process  was  served,  and  be  signed 
by  him. 

Art.  204. — Immediately  after  service  of  the  jirocess,  the 
sheriff  must  send  back  to  the  office  of  the  clerk,  from  whom 
he  recch'ecb*  it,  tlie  original  citation  on  wliich  liis  return  has 
bebn  indorsed,  in  order  that  it  may  be  deposited  at  the  office, 
previous  to  the  expiration  of  the  delay  given  to  the  defendant 
to  file  his  answer. 

1  N.  S.  521 ;  3  N.  S.  158,515 ;  4  N.  S.  431 :  5  N.  S.  507  ;  6  K  S.  467 ;  8  N.  S. 
147,235;  3  L.  451,476;  4  L.  91,157;  5  L.  287,332;  6  L.  628 ;  10  L.  4i8,59.9; 
12  L.  232:  13  L.  11 ;  14  L.  213,364;  16  L.  289,571,595;  17  L  44,405,499;  19  I^ 
88  ;  1  R.  80. 


OF  i»ETITION    AND    CITATION.  '  11*? 

Art.  205. — If  a  sheriff  who  has  charge  of  a  citation  and 
petition,  neglect,  or  postpone  ser\ang  them  regularly,  or  delay, 
mthout  good  cause,  to  deliver,  or  to  send  hack,  the  original  cita- 
tion Avith  his  return  indorsed,  to  the  office  whence  it  issued,  he 
shall  he  hahle  for  all  the  loss  and  damages  wliich  the  party 
may  have  sustained  through  his  neglect. 

Art.  206. — Citation  being  the  essential  ground  of  all  ci\dl 
actions,  in  ordinary  proceedings,  the  neglect  of  that  formality 
annuls  radically  all  proceedings  had,  unless  the  defendant  have 
voluntarily  appeared  to  the  suit,  and  answered  the  demand. 

But  citation  is  not  necessary  in  executoiy  proceeding,  nor 
when  the  proceedings  are  (m  rewi,)  against  the  tiling,  as  here- 
after provided. 

3  R.  332;  12  R.  461. 

Art.  207. — No  citation  can  issue,  no  demand  can  be 
made,  no  proceeding  had,  nor  suits  instituted  on  Sundays,  on 
fourth  of  July,  on  the  eighth  of  January  of  every  year,  nor 
shall  any  arrest  be  made  after  sunset,  on  any  individual  with- 
in his  domicil. 

Stat.  1th  3Iarch,  1838,  p.  44.— §  5.  The  following  days 
shall  be  considered  as  days  of  public  rest  in  this  State,  namely  ; 
the  first  January,  eighth  January,  twenty-second  February, 
fourth  July,  twenty-fifth  December,  Sundays  and  Good  Friday. 

8  R/428  ;  12  L.  639 ;  3  A.  215. 

Sec.  IV. — 0/  the  Conservatory  Ads,  which  may  accom- 
pany the  Demand. 

Art.  208. — He  who  brings  an  action,  may  in  certain  cases 
provided  by  law,  obtain  provisional  orders,  cither  against  the 
person  of  his  debtor,  or  his  property,  in  order  to  give  effect  to 
the  suit,  which  he  has  brought,  or  intends  to  institute  against 
him. 

Art.  209. — There  are  five  sorts  of  conservatory  acts,  to 
wit : 


118  OF  THE  ARREST  OF  THE  DEBTOR. 

The  arrest  of  the  debtor ; 

Attachment  in  the  hands  of  third  persons ; 

Sequestration  ; 

Provisional  seizure  ; 

Injunction. 

a  N.  S.  220,  632 ;  1  N.  S.  440 ;  1  N.  S.  522 ;  14  L.  100,  537 ;  17  L.  212 ;  5  L.  1 10 


§  \.— Of' the  Arrest  of  the  Dehtor. 

Art.  210. — The  arrest  is  one  of  the  means  which  the  law 
^ves  the  creditor  to  secure  the  person  of  his  debtor,  while  the 
suit  is  pending,  or  to  comi)el  him  to  give  security  for  his  ap- 
pearance after  judgment.        •— • 

Art.  211. — Minors  of  both  sexes,  whether  emancipated  or 
not,  interdicted  persons,  and  women,  married  or  single,  caiinot 
be  arrested. 

Stat.  1th  April,  1826,  p.  168.— §  4.  So  much  of  article 
two  hundred  and  eleven,  as  goes  to  exempt  from  an'cst  eman- 
cipated minors  for  debts  legally  contracted  by  them  after 
emancipation,  be  repealed. 

12  L.  412;  17  L.  539. 

Art.  212. — Any  creditor,  whose  debtor  is  about  to  leave 
the  State,  even  for  a  limited  time,  without  leaving  in  it  sufli- 
cient  property  to  satisfy  the  judgment  which  he  expects  to 
obtain  in  the  suit  he  intends  to  bring  against  him,  may 
have  the  person  of  such  debtor  arrested  and  confined,  until 
he  shall  give  sufficient  security  that  he  shaU  not  depart  from 
the  State  without  the  leave  of  the  court. 

Stat.  28th  March,  1840,  p.  131.— §  2.  That  articles  two 
hundred  and  twelve  and  two  hundred  and  fourteen  of  the  Code 
of  Practice  be  and  the  same  are  hereby  so  amended,  that  to 
enable  a  creditor  to  arrest  a  debtor,  it  shall  be  necessary  for 
the  creditor,  his  agent  or  attorney  to  swear  that  he  verily 
beheves  that  the  said  debtor  is  about  to  depart  perma- 
nently from  the  State,  without  leaving  in  it  sufficient  proper- 


OF  THE  ARREST  OF  THE  DEBTOR.  119 

ty  to  satisfy  his  demand  ;  and  lastly,  tliat  he  does  not  take 
this  oath  with  the  intention  of  vexing  the  defendant. 

7  N".  S.  525 ;  4  L.  227  ;  5  L.  281 ;  8  L  613 ;  10  R.  543. 

Art.  213. — Such  arrest  may  be  ordered  in  all  demands 
brought  for  a  debt,  whether  liquidated  or  not,  when  the  term 
of  payment  has  expired,  and  even  for  damages  for  any  injury 
sustained  by  the  plaintiff  either  in  his  person  or  property. 

12  R.  5G3. 

Art.  214. — Previous  to  obtaining  an  order  of  arrest  against 
his  debtor  to  compel  him  to  give  sufficient  security  that  he 
shall  not  depart  from  the  State,  the  creditor  must  swear,  in  the 
petition  which  he  presents  to  that  effect  to  any  competent  judge, 
that  the  debt  or  the  damages,  which  he  claims,  and  the  amount 
of  which  he  specifies,  is  really  due  to  him,  and  that  he  verily 
believes  that  the  defendant  is  about  to  remove  from  the  State, 
without  leaving  in  it  sufficient  property  to  satisfy  his  demand  ; 
and  lastly,  that  he  does  not  take  tliis  oath  with  the  intention 
of  vexing  the  defendant,  but  only  in  order  to  secure  his  de- 
mand. 

See  amendment  to  art.  212. 

Stat  25th  llarcJi,  1828,  p.  150.— §  1.  The  affidavit  re- 
quired by  the  two  hundred  and  fourteenth  article  of  the  Code 
of  Practice  may  be  written  either  at  the  foot  of  the  plaintiff's 
petition,  or  annexed  to  the  said  petition. 

Stat.  25th  March,  1828,  p.  158.— §  18.  The  orders  of  ar- 
rest, attachment,  sequestration,  provisional  seizure  and  injunc- 
tion, as  well  as  the  commissions  to  take  the  deposition  of  wit- 
nesses in  civil  matters,  may  be  issued  either  by  the  judge  be- 
fore whom  the  cause  is  brought,  or  by  the  clerk  of  his  court ; 
Provided,  that  the  parties  applying  for  the  same  comply  with 
the  formahties  prescribed  by  law  to  obtain  any  of  the  above 
mentioned  orders. 

See  amendment  to  art.  783,  Stat.  Uth  March,  1850,  p.  99. 
6  N.  S.  165 ;  4  L.  227,  280 ;  6  L.  281 ;  7  L.  394  ;  10  R.  543. 

Art.  215. — The  oath  prescribed  in  the  preceding  article^ 


120         OF  THE  ARREST  OF  THE  DEBTOB. 

may  be  taken,  either  by  the  creditor  liimself,  or  in  his  absencf 
by  his  attorney  in  fact,  or  his  agent,  provided  either  one  or  the 
other  can  swear  to    the  debt,  from  his   personal  and  direct 
knowledge  of  its  being  due,  and  not  by  what  he  may  know,  of 
have  learned  from  the  creditor  he  represents. 

7  N.  S.  411 ;  13  K  212,  306 ;  16  L.  676. 

Art.  216. — The  oath  which  the  creditor  is  required  to 
take,  of  the  existence  and  nature  of  the  debt,  of  which  he  i 
claims  payment,  in  the  cases  provided  in  the  two  preceding 
articles,  may  be  taken,  either  before  any  judge  or  justice  of 
the  peace  of  the  place  where  the  court  is  held,  before  which 
he  sues,  or  before  the  judge  of  any  other  place,  provided  the 
signature  of  such  judge  be  proved  or  duly  authenticated. 

JStat  7th  April,  1826,  p.  168.— §  5.  The  oath  required  by 
articles  two  hundred  and  sixteen  and  two  hundred  and  seven- 
teen, may  be  taken  before  any  judge  or  justice  of  the  jieace, 
or  clerks  of  courts,  and  all  oaths  required  to  be  taken  in 
case  of  arrest  of  the  debtor,  or  in  order  to  obtain  the  orders  of 
attachment,  provisional  seizure,  sequestration  of  the  debtor's 
property,  or  injunction,  shall  be  administered  by  the  persons 
above  mentioned. 

Stat.  20t7i  March,  1839,  p.  168.— §  16.  In  all  cases  when 
by  any  i)roMsion  of  said  code  an  oath  of  a  party  is  required, 
it  may  (in  the  case  of  the  absence  of  said  i)arty)  be  made  by 
his  agent  or  attorney ;  and  in  such  case  it  shall  be  sufficient 
for  the  agent  or  attorney  to  swear  to  the  best  of  his  know- 
ledge and  belief 

4  N.  S.  855,  514. 

Art.  217. — The  above  rule  governs,  in  all  the  cases  where 
the  agent  or  attorney  in  fact  of  the  creditor,  swears  to  the  ex- 
istence of  the  debts  claimed,  either  to  obtain  the  attachment 
in  the  hands  of  third  persons,  the  provisional  seizure,  or  the 
sequestration  of  the  debtor's  property,  or  in  order  that  he  be 
enjoined  not  to  dispose  of  the  same,  while  the  action  is  pend- 
ing. 

See  art.  216 


OF  THE  ARREST  OF  THE  DEBTOR.  121 

Art.  218. — The  debtor  who  has  been  arrested  and  held  to 
surety,  may  be  discharged,  by  proving  to  the  judge  either  in 
open  court,  or  at  his  chamber,  after  having  given  notice  to  the 
plaintiff  of  his  intended  application,  that  the  fticts  stated  by 
the  plaintiff,  in  order  to  obtain  his  arrest,  are  not  true  ;  but 
the  plaintiff  shall  be  allowed  to  support  them  by  other  tes- 
timony. 

1  N.  S.  625 ;  1  R.  231 ;  2  A.  4ii8. 

Art.  219. — The  defendant  may  also  be  discharged,  by  giv- 
ing to  the  sheriff  his  note  or  obligation  for  a  sum  exceeding 
by  one-fourth  that  wliich  is  demanded,  with  the  security  of 
one  good  and  solvent  person,  that  he  shall  not  depart  the 
State,  without  the  leave  of  the  comi  ;  and  that  in  case  he 
should  depart  without  such  leave,  the  said  security  shall  i)ay 
to  the  sheriff  the  amount  for  which  definitive  judgment  shall 
be  rendered  in  the  cause. 

Stat.  2Sth  March,  1840,  p.  135.— From  and  after  the 
passage  of  this  act,  the  condition  of  the  bond  to  be  given  by  a 
debtor  who  shall  have  been  arrested  by  his  creditor  (unless  for 
some  of  the  causes  pointed  out  in  the  tenth  section  of  the 
above  entitled  act),  shall  be  that  the  debtor  shall  not  depart 
the  State,  for  the  term  of  three  months ;  and  when  arrested  for 
any  of  the  causes  pointed  out  in  said  tenth  section,  the  c§n- 
dition  of  the  bond  shall  be  that  if  the  fraud  complained  of 
shall  be  established,  the  security  shall  be  liable  for  the  debt 
due  the  complaining  creditor,  in  case  the  debtor  shall  have  de- 
parted from  the  State  ^Tithout  the  leave  of  the  court. 

2N.  a  656;  8  L.  508;  9  L.  451. 

Art.  220. — The  defendant  may  be  discharged  likewise,  by 
placing  in  the  hands  of  the  sheriff  property  of  sufficient  value 
to  satisfy  the  amount  of  the  plaintiff's  demand,  in  case  judg- 
ment should  be  rendered  against  him. 

Art.  221. — Even  when  the  debt  is  not  yet  due,  if  the 
debtor  be  about  leaving  the  State,  the  creditor  may  have  such 
debtor  arrested,  if  he  make  the  oath  above  described,  adding, 
that  he  verily  beUevcs  that  such  debtor  is  about  to  depart, 


122  OF  THE  ARREST  OF  THE  DEBTOR. 

with  the  intention  to  defraud  Jiis  creditors,  and  setting  forth, 
specially,  the  circumstances  on  wliich  that  behef  is  grounded  ; 
but  the  defendant  will  always  be  allowed  to  disprove  such  alle- 
gations, as  above  provided. 

12  L.  272;  1  R.  170. 

Art.  222. — The  defendant  thus  arrested,  may  be  dis- 
charged by  giving  his  note,  or  obligation,  to  the  slierift",  for  a 
sum  exceeding  by  one-fourth  the  sum  due  to  the  creditor,  at 
whose  suit  he  has  been  arrested,  with  the  security  of  one  good 
and  solvent  person,  that  he  shall  appear  when  tlie  debt  sliall 
become  due,  and  the  judgment  shall  have  been  rendered  on 
the  same,  and  that  on  his  failing  to  appear,  the  said  security 
shall  be  bound  to  pay  the  amount  of  said  judgment. 

G  N.  S.  529 ;  3  L.  509 ;  9  L.  451. 

Art.  223. — A  debtor,  thou^jh  he  has  called  a  meetino-  of 
his  creditors,  in  order  to  make  a  surrender  of  his  property, 
and  has  obtained  a  stay  of  proceedings  against  liis  person,  or 
property,  may,  nevertheless,  be  arrested,  if  one,  or  more  of 
his  creditors,  declare  on  oath,  before  the  court  in  which  the 
failure  took  place,  that  he,  or  they,  verily  believe,  that  such 
debtor  intends  departing  from  the  jurisdiction  of  the  court,  to 
secrete  his  person  from  his  creditors  ;  provided  they  set  forth, 
specially,  the  circumstances  which  have  induced  them  to  form 
such  a  belief. 

8  L.  174  ;  9  L.  20,191. 

Art.  224. — A  debtor,  arrested  pursuant  to  the  provisions 
of  the  preceding  article,  may  be  discharged,  by  disproving  the 
charge  brought  against  liim,  or  by  giving  to  the  sheriif  his  ob- 
hgation  for  such  sum  as  shall  be  determined  by  the  judge, 
with  the  security  of  one  good  and  solvent  person,  that  he  shall 
not  leave  the  limits  of  the  jurisdiction  of  the  court,  until  after 
the  surrender  of  his  property  shall  have  been  accepted  by  his 
creditors,  or  duly  homologated,  and  the  property  surrendered 
by  him,  dehvered. 

8  N.  S.  109. 

Art.  225. — When  the  sheriif  takes  an  obhgation  with  a 


OF  THE  AKREST  OF  THE  DEBTOR.  123 

surety,  in  any  of  the  cases  specified  in  the  preceding  articles, 
he  must  immediately  return  such  act  to  the  office  of  the  clerk 
of  the  court  where  the  suit  is  pending,  in  order  that  it  may  be 
communicated  to  the  plaintiff. 

Art.  226. — If  no  exception  he  taken  by  the  plaintiff  to 
the  sufficiency  of  the  security  taken  by  the  sheriff,  witliin  ten 
days  after  said  act  is  so  returned,  no  such  exception  shall,  ever 
after,  be  allowed,  and  the  act  of  sm'cty  shall  be  assigned  by 
the  sheriff  to  the  plaintiff. 

Art.  227. — But,  if  within  ten  days  after  the  act  shall 
have  been  returned  by  the  sheriff  to  the  office  of  the  clerk  of 
the  court,  the  plaintiff  except  to  the  surety  accepted  by  the 
sheriff,  as  not  being  solvent  and  sufficient,  said  plaintiff  must 
move  for  a  rule  of  the  court,  calling  on  the  sheriff  to  show 
cause,  ten  days  after  being  notified  of  the  same,  if  such 
sheriff  reside  in  the  i^arish  where  the  court  is  held,  why  he 
should  not  be  made  liable,  personally,  to  the  plaintiff,  as  se- 
curity for  the  debt,  in  the  same  manner  as  the  surety  received 
by  the  said  sheriff  w^ould  have  been,  had  he  proved  good  and 
sufficient. 

Stat.  7th  April,  1826.  p.  168.— §  6.  The  time  given  by 
article  two  hundred  and  twenty-seven  shall  be  twenty  instead 
of  ten  days  for  excepting  to  the  securities  taken  by  the  sheriff, 
and  out  of  the  first  judicial  district,  instead  of  moving  for  a  rule 
of  court,  the  plaintiff  may  make  his  exceptions  before  the 
judge  in  chambers. 

Art.  228.— In  case  such  sheriff  should  reside  in  another 
parish,  the  judge  shall  give  such  delay  as  he  may  think  suffi- 
cient, to  enable  him  to  appear  and  answer  to  the  rule  granted 
against  him,  as  above  stated. 

Art.  229. — At  the  expiration  of  this  delay,  the  court  shaD 
decide  on  the  vahdity  of  the  exception  taken  by  the  plaintiff, 
and  should  the  security  received  by  the  sheriff,  be  pronounced 
not  good  and  sufficient,  the  court  shall  adjudge  him  to  be 
bound  to  the  plaintiff,  in  the  same  manner  as  the  security, 
thus  improperly  received  by  him,  would  have  been. 

8  A.  62. 


124         OF  THE  ARREST  OF  THE  DEBTOR. 

Art.  230. — One  who  has  bcome  surety  that  another  shall 
not  depart  the  State,  or  leave  the  jurisdiction  of  the  court  by 
which  the  order  of  surety  was  granted,  and  that  he  will  ap- 
pear to  answer  to  the  judgment,  may  be  discharged  from  all 
responsibility,  by  surrendering  to  the  sheriflf  the  person  of 
the  debtor  whom  he  had  arrested. 

8  K".  S.  110,124,169;  8  L.  124;  9  L.  451;  11  L.  92;  14  L.  197;  16  L.  526; 
1  R.  561;  2  R.  25,  496;  11  R.  203; 

Art.  231. — Such  surrender  of  the  person  of  a  debtor  may 
be  made  in  every  stage  of  a  cause,  jDrevious  to  judgment  hav- 
ing been  rendered  against  the  surety,  as  hereafter  provided. 

8  L.  124;  9  L.  451;  11  R.  203. 

Art.  232. — The  sheriff  to  whom  the  person  of  a  debtor  is 
so  surrendered,  must  deliver  to  the  surety  a  certificate  of  his 
having  so  surrendered  the  person  of  the  debtor,  and  on  pro- 
ducing such  a  certificate  to  the  court,  after  due  notice  having 
been  served  on  the  defendant,  the  surety  may,  on  motion, 
have  the  act  of  surety  executed  by  liim,  cancelled. 

11  R.  92. 

Art.  233. — If  one  who  has  become  surety  for  a  debtor,  in 
any  of  the  cases  above  mentioned,  wish  to  be  discharged  of 
such  surety,  by  surrendering  his  person,  and  such  debtor  refuse 
to  go  voluntarily  to  be  so  surrendered,  or  attemjDt  to  leave  the 
State,  or  the  jurisdiction  of  the  court,  without  his  consent, 
such  surety  may  have  the  debtor  arrested,  in  order  to  surren- 
der him  to  the  sheriff,  by  jietitioning  and  obtaining  the  order 
of  the  judge  to  that  effect ;  provided  he  annex  to  his  petition 
an  authentic  copy  of  the  act  by  which  he  became  surety. 

3L.  509;  11  R.  203. 

Art.  234. — If  the  debtor  has  failed,  and  has  obtained  a 
stay  of  proceeding  against  his  person  and  property,  the  surety 
may,  nevertheless,  have  him  arrested,  in  the  manner  provided 
in  the  preceding  article. 

Art.  235. — But  if  the  surety  fail  to  present  the  person  of 
the  debtor,  on  execution  of  the  definitive  judgment  rendered 


OF  THE  ARREST  OF  THE  DEBTOR.        125 

against  him,  the  plaintiff  shall  be  entitled  to  judgment  against 
such  surety  for  the  amount  of  the  judgment  rendered  against 
the  debtor,  by  moving  for  it  before  the  court  by  which  it  was 
rendered,  after  exliibiting  the  act  of  surety  transferred  to  him 
by  the  sheriff ;  pro^dded  -vrntten  notice  of  the  intended  motion 
be  given  to  such  surety,  ten  days  previous  to  taking  judgment 
against  hhn. 

Stat  20(h  llarcJi,  1839,  p.  162.— §  2.  Article  two  hun- 
and  thirty-five  of  the  Code  of  Practice  shall  be  so  amended, 
that  the  surety  therein  mentioned,  against  whom  a  motion 
shall  have  been  made,  to  render  him  liable  for  the  amount  of 
the  judgment  given  against  the  debtor,  shall  be  tried  sum- 
marily, and  without  the  intervention  of  a  jury,  unless  the  said 
surety  shall  allege  under  oath,  that  the  signature  to  the  bond, 
purporting  to  be  his,  is  not  genuine,  or  that  the  judgment  has 
been  satisfied. 

4  K  S.  317 ;  6  K  S.  627  ;  8  N.  S.  110,124,269  ;  3  L.  509 ;  8  L.  123,175  ; 
11  L.  92;  12  L.  550;  14  L.  197;  15  L.  543;  17  L.  530,572;  1  R.  208,388; 

2  R.  25 ;  9  L.  452. 

Art.  236. — Judgment  can  only  be  rendered  against  the 
surety  for  the  amount  of  the  sum  for  which  he  became  surety. 
It  must  be  the  same  as  that  given  against  the  debtor  himself. 

3  L.  507. 

Art.  237. — A  creditor  may  have  his  debtor  arrested,  when 
such  debtor  is  about  leaving  the  State,  at  the  very  moment  of 
instituting  his  action,  wliile  it  is  pending,  and  in  every  stage  of 
the  proceeding,  and  even  after  appeal. 

Stat.  25th  March,  1828,  p.  150.— §  4.  In  all  cases  where 
attachments,  arrests,  and  sequestration  are  demandable,  the 
plaintiff,  his  agent  or  attorney  having  made  affidavit  and 
given  bond,  in  confbrmity  to  law,  and  having  filed  the  same  in 
court,  it  shall  be  the  duty  of  the  clerk  to  issue,  forthwith,  the 
process  required,  without  any  petition  being  then  presented  ; 
but  the  usual  petition  shall  be  filed  on  the  day  succeeding  that 
on  which  the  said  process  shall  have  issued,  except  in  cases 
where  a  Sunday,  Fourth  of  July,  or  Eighth  of  January,  shall 


126     ,  OF  ATTACHMENT  IN  THE  HANDS 

be  the  succeeding  day  ;  then,  on  the  day  next  succeeding  such 
Sunday,  Fourth  of  July,  or  Eighth  of  January  ;  and  the 
sheriff  shall  iiroceed  immediately  to  execute  said  process  ac- 
cording to  its  tenor. 

2  L.  171. 

Art.  238. — No  debtor  can  hereafter  be  arrested,  and  held 
to  surety,  all  laws  to  the  contrary  notwithstanding,  cxcei^t  in 
the  cases  above  provided. 


§  2.   Of  atfachment  in  the  hands  of  third  persons. 

Art.  239. — An  attachment  in  the  hands  of  third  persons, 
is  a  mandate  which  a  creditor  obtains  from  a  competent  judge, 
commanding  the  seizure  of  any  property,  credit,  or  right,  be- 
longing to  his  debtor,  in  whatever  hands  they  may  be  found, 
to  satisfy  the  demand  which  he  intends  to  bring  against  him. 

See  amendments  to  arts  214,237  ;  4  N.  S.  431 ;  7  N.  S.  525. 

Art.  240. — A  creditor  may  obtain  such  attachment  of  the 
property  of  his  debtor,  in  the  following  cases  : 

1.  When  such  debtor  is  about  leaving  permanently  the 
State,  without  there  being  a  possibility,  in  the  ordinary  course 
of  judicial  proceedings,  of  obtaining  or  executing  judgment 
against  him  previous  to  his  departure,  or  when  such  debtor  has 
already  left  the  State  never  again  to  return  ; 

2.  When  such  debtor  resides  out  of  the  State  ; 

3.  When  he  conceals  himself  to  avoid  being  cited  and 
forced  to  answer  to  the  suit  intended  to  be  brought  against  him. 

Stat  20th  March,  1839,  p.  162.— §  4.  That  article  two 
hundred  and  forty  of  said  code  be  so  amended,  that  the  words 
"never  again  to  return"  be  stricken  out,  and  the  word  "per- 
manently "  be  inserted  in  lieu  thereof. 

6  K  S.  664;  8  N.  S.  251,441 ;  1  L.  173;  10  L.  447 ;  8  R.  248  ;  1  A.  315;  2  A. 
920;  6  A.  201. 

Art.  241. — A  creditor  may,  in  like  manner,  obtain  a 
mandate  of  seizure  agaiast  all  species  of  property  belonging 


OF   THIRD    PERSONS,  127 

to  his  debtor,  real  or  personal,  whether  it  consists  of  slaves, 
credits,  or  right  of  action  ;  and,  whether  such  property  be  in 
the  debtor's  possession,  or  in  that  of  third  persons,  by  whatever 
title  the  same  be  held,  either  as  deposit,  or  placed  under  their 
custody. 

4  N.  S.  185,669;  7  N.  S.  139;  8  N.  S.  146;  2  L.  424;  6  L.  298;  8  L.  137,146- 
9  L.  123,440. 

Art.  242. — The  property  of  a  debtor  may  be  attached  in 
the  hands  of  third  persons,  by  his  creditor,  in  order  to  secure 
the  payment  of  a  debt,  whatever  may  be  its  nature,  whether 
the  amount  be  liquidated  or  not,  pro\dded  the  term  of  pay- 
ment have  arrived,  and  the  creditor,  his  agent  or  attorney  in 
fact  who  prays  for  the  attachment,  state  expressly  and  positive- 
ly the  amount  which  he  claims. 

9  L.  287;  11  L.  581;  8  R.  428;  12  R.  563,571. 

Art.  243. — A  creditor  wishing  to  have  the  property  of  his 
debtor  attached,  must  demand  it  in  a  petition  presented  to  a 
competent  judge,  with  a  declaration  made  under  oath,  at  the 
foot  of  said  petition,  stating  the  amount  of  the  sum  due  to 
him,  and  that  his  debtor  is  either  on  the  eve  of  leaving  the 
State,  forever,  that  he  has  left  it  never  again  to  return,  that 
he  resides  out  of  the  State,  or  that  he  conceals  himself  in  or- 
der to  avoid  being  cited. 

Stat.  7th  April,  1826,  p.  170.— §  7.  That  articles  two 
hundred  and  forty-two,  two  hundred  and  forty-three  and  two 
hundred  and  forty-four,  of  the  said  code,  be  so  amended,  that 
in  cases  where  the  debt  or  obhgation  is  not  yet  due,  it  shall 
be  lawful  for  any  judge  of  competent  jurisdiction  to  order  a 
writ  of  attachment  to  issue,  whenever  the  said  judge  shall  be 
satisfied  by  the  oath  of  the  creditor  or  his  agent,  of  the  ex- 
istence of  said  debt,  and  upon  the  said  creditor  or  his  agent 
taking  oath  to  either  of  the  requisites  in  numbers  one,  two  and 
three  of  article  two  hundred  and  forty,  and  complies  with  ar- 
ticle two  hundred  and  forty-four,  and  moreover  swears  that 
said  debtor  is  about  to  remove  his  property  out  of  the  State 


128  OF    ATTACHMENTS    IN    THE    HANDS 

before  said  debt  becomes  due,  that  it  shall  be  sufficient  for  the 
oath  required  to  be  taken  by  the  agent  to  be  to  the  best  of 
his  knowledge  and  belief :  and  that  it  shall  be  deemed  suffi- 
cient for  the  creditor  in  order  to  obtain  an  attachment,  to 
make  the  oath  required  to  be  taken  by  liim  in  conformity  to 
any  of  the  requisites  of  numbers  one,  two  and  three  of  article 
two  hundred  and  forty. 

Stat.  20th  March,  1839,  p.  164.— §  5.  Article  two  hun- 
di*ed  and  forty-three  of  said  code  shall  be  so  amended,  that  in 
lieu  of  the  oath  prescribed  by  said  article,  it  shall  be  sufficient 
for  the  creditor  to  swear  to  the  existence  of  the  debt  demand- 
ed by  him,  and  that  he  verily  believes  that  the  debtor  has 
left  the  State  permanently,  or  that  he  resides  out  of  the  State, 
or  conceals  himself,  so  that  citation  cannot  be  served  on  him. 

1  N.  S.  416;  5  N.  S.  454;  8  N.  S.  396;  8  L.  585;  8  R.  428;  12  R.   563; 
1  A.  315;  2  A.  567,920;  6  A.  201. 

Art.  244. — Such  attachment  may  be  granted  on  the  oath 
of  the  agent  or  attorney  in  fact  of  the  creditor,  if  such  cred- 
itor be  absent  ;  provided  he  swear,  from  his  own  knowledge, 
of  the  reaHty  and  amount  of  the  debt  claimed,  or  of  the 
other  circumstances  mentioned  in  the  preceding  article. 

Stat.  2\st  February,  1828,  p.  38.  The  two  hundred  and 
forty-fourth  article  of  the  Code  of  Practice  shall  be  so  amend- 
ed, that  the  oath  required  by  said  code,  to  authorize  the  issu- 
ing of  an  attachment  in  cases  where  the  debt  is  already  due, 
may  be  made  by  the  agent  or  attorney  of  the  creditor  to  the 
best  of  his  knowledge  and  behef. 

See  amendment  to  art.  216. 

Art.  245. — A  creditor,  his  agent,  or  attorney  in  fact,  pray- 
ing^ such  attachment,  must,  besides,  annex  to  his  petition  his 
obligation  in  favor  of  the  defendant,  for  a  sum  exceeding,  [by] 
one-half  that  which  he  claims,  with  the  surety  of  one  good 
and  solvent  person,  residing  within  the  jurisdiction  of  the 
court,  to  which  the  petition  is  presented,  as  a  security  for  the 
payment  of  such  damages,  as  such  defendant  may  recover 


OF    THIRD    PERSONS.  129 

against  liim,  in  case  it  sliould  be  decided  that  the  attachment 
was  wrongfully  obtained. 

The  word  "%"  should  be  inserted  after  ihe  word  "exceeding"  in  this  arti- 
cle.    See  3  L.  67. 

1  N.  S.  341 ;  4  N.  S.  m  :  6  N.  S.  242,673 ;  7  N.  S.  232 ;  8  N.  S.  481 ;  7  L.  232 ; 
10  L.  109,447 ;  13  L.  308,362  ;  17  L.  438 ;  18  L.  485  ;  12  R.  221,227  ;  2  A.  415  ; 
^  3  A.  688. 

Art.  246. — If  a  creditor  know,  or  suspect,  that  a  third 
person  has,  in  his  possession,  property  belonging  to  his  debtor, 
or  that  he  is  indebted  to  such  debtor,  he  may  make  such  a 
person  a  party  to  the  suit,  by  having  him  cited,  to  declare  on 
oath,  Avhat  property  belonging  to  the  defendant  he  has  in  his 
possession,  or  in  ^vhat  siun  he  is  indebted  to  such  defendant, 
even  when  the  term  of  payment  has  not  yet  arrived. 

The  jierson,  thus  made  a  party  to  the  suit,  is  termed  the 
garnishee. 

Stat  20th  3Iarch,  1839,  p.  166.— §  13.  In  the  parish  of 
Orleans,  whenever  a  party,  plaintiff  in  a  cause,  has  applied 
for  a  writ  of  ^^eW/acms  against  the  defendant,  and  has  reason 
to  believe  that  a  third  person  has  property  or  effects  in  liis 
possession,  or  under  his  control,  belonging  to  the  defendant,  or 
is  indebted  to  liim,  he  may  cause  such  third  person  to  be  cited 
to  answer  under  oath,  such  interrogatories  as  may  be  pro- 
pounded to  him  touching  said  property  and  effects,  or  such  in- 
debtedness, in  the  same  manner  and  -svith  the  same  regulations 
as  are  provided  in  relation  to  garnishees  in  cases  of  attach- 
ment. Such  third  person  shall  thereupon  be  bound  to  an- 
swer in  the  same  manner,  and  shall  be  liable  in  the  same 
manner  for  his  neglect  or  refusal  to  answer,  and  his  answers 
may  be  disproved  in  the  same  manner  as  those  of  garnishees  ; 
in  case  such  third  person  shall  confess  in  his  answers  that  he 
has  property  or  effects  in  liis  possession,  or  under  his  control, 
belonging  to  the  defendant,  or  is  indebted  to  liim  in  any  sum 
of  money,  the  court  shaU  order  him  forthwith  so  dehver  up 
said  property,  to  pay  such  sum,  (if  the  samo  be  due,  and  if 
9 


130  OF    ATTACHMENT    IN    THE    HANDS 

not,  when  the  same  shall  be  clue),  to  the  sheriff,  and  a  copy 
of  said  order,  with  the  receipt  of  the  sheriff  indorsed  thereon, 
shall  be  delivered  to  the  said  third  person,  and  shall  be  de- 
creed equivalent  to  a  receipt  from  the  debtor  himself ;  the 
property  and  effects,  in  the  possession  of  a  third  person,  be- 
longing to  the  defendant,  or  debts  due  by  him  to  such  defend- 
ant, shall  be  decreed  to  be  levied  as  by  the  sheriff  from  the 
date  of  the  servdce  of  the  inteiTogatories  on  such  persons. 

Stat.  18t7i  March,  1840,  p.  43.— The  thirteenth  section 
of  the  above  recited  act  be  so  amended  that  the  provisions 
therein  contained,  shall  have  fidl  effect  in  each  and  every 
parish  in  the  State  of  Louisiana. 

4L.  187;  8  L.  157;  12  R.  445. 

Akt.  247. — A  creditor  may  likewise  annex  to  his  petition, 
interrogatories  on  facts  and  articles,  to  be  answered  categori- 
cally under  oath  by  such  garnishee,  as  to  the  nature  of  the 
property  belonging  to  the  defendant,  which  may  be  in  his  pos- 
session, and  as  to  the  amount  of  the  sums  for  which  he  may 
be  indebted  to  him. 

Stat.  7th  April,  1826,  p.  170. — §  8.  In  case  a  garnishee  ac- 
knowledges himself  indebted  to  the  defendant,  it  shall  be  law- 
ful for  the  judge  to  order  the  said  garnishee  to  be  held  to  bail  * 
in  the  same  case  as  if  he  was  the  original  defendant,  unless 
he  prefers  depositing  the  money  in  court. 

12  R.  445. 

Art.  248. — If  a  creditor,  who  has  filed  interrogatories  on 
facts  and  articles,  to  be  answered  by  a  garnishee,  declare  upon 
oath,  that  he  verily  believes  that  such  garnishee  has  in  his 
hands  property  or  effects  belonging  to  his  debtor,  or  is  in- 
debted to  the  defendant  in  any  sum  of  money,  whether  the 
same  be  due  or  not,  and  that  such  garnishee  is  about  to  de- 
part fi-om  the  State,  without  having  filed  his  answers  to  such 
inten-ogatories,  such  garnishee  may  be  arrested  and  confined, 
until  he  gives  good  and  sufficient  security,  in  a  sum  exceeding 
by  one -half  the  amount  claimed  by  the  plaintiff  that  he  .shall 


Ot"   THIRD    PERSONS.  131 

appear  whenever  cited  to  do  so,  before  any  judge  or  justice  of 
the  peace,  to  answer  the  interrogatories  put  to  him,  and  that 
he  shall  answer  them  in  the  manner  provided  in  the  preced- 
ing article. 

Art.  249. — The  garnishee  may  nevertheless  be  discharged, 
without  being  obliged  to  give  security,  if  he  i)rove  to  the  sat- 
isfaction of  the  court,  which  liad  given  the  order  of  arrest, 
after  notice  in  wi-iting  having  been  served  on  the  defendant^ 
of  his  intention  of  making  such  proof,  that  he  has  no  inten- 
tion of  leaving  the  State  ;  or,  if  he  immediately,  in  the  pres- 
ence of  the  court,  answer  in  MTiting  and  pertinently  the  inter- 
rogatories put  to  him,  and  file  such  answer  in  the  office  of 
the  clerk  of  the  court. 

Art.  250. — A  garnishee  may  be  made  party  to  a  suit,  and 
be  cited  to  answer  interrogatories  on  facts  and  articles,  either 
by  praying  to  that  effect  in  the  original  petition,  or  by  a  sup- 
plemental petition,  filed  at  any  stage  of  the  suit,  previous  to 
rendering  the  judgment. 

12  R.  445. 

Art.  251. — When  an  order  to  attach  property  in  the  hands 
of  a  third  person,  has  been  given  by  a  coiu-t,  the  clerk  of  such 
court  shall  deliver,  or  send  to  the  sheriff,  a  copy  of  such  order, 
in  French  and  in  English,  when  the  French  language  is  the 
maternal  tongue  of  either  of  the  parties,  as  well  as  of  the  pe- 
tition, together  with  a  citation  to  the  person  made  party  to 
the  suit,  to  answer  such  petition  within  the  usual  delay,  grant- 
ed in  ordinary  cases. 

8  K  S.  354. 

Art.  252. — If  there  be  a  garnishee  made  party  to  the 
suit,  the  clerk  must  deliver,  or  send  to  the  sheiiff,  a  copy  of 
the  petition  and  of  the  interrogatories  annexed  to  it,  if  there 
be  such,  with  a  summon  directed  to  such  garnishee,  to  an- 
swer the  same,  within  the  delay  given  in  ordinary  suits. 

12  R.  445. 

Art.  253. — The  sheriff  must  serve  such  citation  :  * 


132  OF    ATTACHMENT    IN    THE    HANDS 

1.  On  the  person  of  the  defendant,  or  at  his  domicil,  if  he 
has  one  ia  the  place,  or  if  he  he  about  to  leave  the  State  ; 

2,  At  the  place  where  the  defendant  has  resided  last,  if 
he  had  a  domicil  in  the  place,  and  conceal  liimself  to  avoid 
being  cited. 

Akt.  254. — If,  on  the  contrary,  the  garnishee  has  no  Imown 
place  of  residence,  conceal  his  person,  be  absent,  or  reside  out 
of  the  State,  in  such  a  case  the  sheriff  shall  serve  the  attach- 
ment and  citation,  by  affixing  copies  of  the  same  in  French 
and  in  EngHsh,  when  the  French  language  is  the  maternal 
tongue  of  either  of  the  parties,  on  the  door  of  the  parish 
church  of  the  place,  or  to  that  of  the  room,  where  the  court, 
in  which  the  suit  is  pending,  is  held. 

For  "  Garnishee  "  read  "  defendant.    7  N.  S.  160 ;  8  K  S.  24*7 ;    8  L.  19 ; 
3  R.  232;  12  R.  461. 

Art.  255. — In  the  latter  case,  the  sheriff  must  keep  the 
copy  of  the  petition,  in  order  to  deliver  the  same  to  such  par- 
ty, should  he  appear,  or  to  the  advocate  appointed  to  defend 
him  in  his  absence. 

Art.  256. — The  sheriff,  as  soon  as  he  shall  have  served  the 
copy  of  the  petition,  in  the  manner  prescribed  in  the  preced- 
ing articles,  and  notified  the  garnishee  of  the  same,  in  the 
form  required  to  be  observed  as  relates  to  garnishees,  if 
there  be  such  made  party  to  the  suit,  must  seize  and  detain  so 
much  of  whatever  property  the  debtor  may  possess  within  the 
parish  over  which  his  powers  extend,  whether  it  consist  of 
goods,  effects,  rights,  credits,  or  rights  of  action,  as  may  be 
equal  in  value  to  the  amount  claimed  in  the  suit ;  and  he 
must  immediately  after,  deliver  or  send  to  the  clerk  of  the 
court,  by  which  the  attachment  was  granted,  liis  return  in 
writing,  stating  the  manner  in  which  he  has  executed  the 
same. 

3  R.  232 ;  See  8  N.  S.  352. 

Art.  257. — The  sheriff  must  take  charge,  and  keep  pos- 
session of  all  the  goods  and  effects  which  he  may  have  at- 


OF    THIRD   PERSONS.  133 

tachedj  with  the  exception  of  such  sums  which  may  be  due  by 
the  garnishee,  and  he  shall  make,  in  the  presence  of  two  wit- 
nesses, an  exact  and  minute  inventory  of  the  same,  which  he 
shall  be  bound  to  deliver  or  send,  annexed  to  his  return,  to  the 
ofl&cc  of  the  clerk  of  the  court,  whose  mandate  he  has  exe- 
cuted. 

Art.  258, — If  the  garnishee,  thus  made  a  party  to  a  suit, 
appear  after  having  been  served  with  the  citation,  or  prove  in 
a  summary  way,  after  having  given  due  notice  in  writing  to 
the  adverse  party,  that  the  allegations  on  which  the  order  for 
attachment  had  been  obtained,  were  false,  such  attachment 
shall  be  dissolved,  and  the  party  will  be  allowed  to  proceed  in 
his  defence,  as  in  ordinary  suits. 

For  "  Garnishee  "  read  "  defendant.'"     See  8  N.  S.  247,  355  ;  2  A.'  498. 

Art,  259. — The  garnishee,  if  he  appear,  either  in  person, 
or  by  his  attorney,  may,  moreover,  in  every  stage  of  the  suit, 
have  such  attachment  set  aside,  by  delivering  to  the  sheriff 
his  obligation  for  the  sum,  exceeding  by  one-half  that  which 
is  demanded,  with  the  surety  of  a  good  and  solvent  person,  re- 
siding within  the  jurisdiction  of  the  court  where  the  action  was 
brought,  that  he  will  satisfy  such  judgment  as  may  be  rendered 
against  him  in  the  suit  pending. 

Stat.  20th  March,  1839,  p.  163.— §  3.  Article  two  hun- 
dred and  fifty-nine  of  the  Code  of  Practice  be  so  amended, 
that  in  case  of  attachment,  when  the  defendant  has  given  his 
obligation  with  security,  as  by  said  article  provided,  and  fails 
to  satisfy  the  judgment  rendered  against  him,  the  plaintiff  may, 
on  the  return  of  the  sheriff  that  no  property  has  been  found, 
and  on  exhibiting  to  the  court  said  obligation  duly  transferred 
to  him,  obtain  judgment  against  the  surety  on  said  obligation 
upon  motion,  after  ten  days  previous  notice  to  said  surety,  which 
motion  shall  be  tried  summarily  and  without  the  intervention 
of  a  jury,  unless  the  said  surety  shall  allege  under  oath,  that 
the  signature  to  the  bond  purporting  to  be  his,  is  not  genuine, 
or  that  the  judgment  has  been  satisfied. 


134  OF    ATTACHMENT    IN    THE    HANDS 

Stat  20th  March,  1839,  p.  168.— §  18.  In  all  cases  where 
property  attached,  sequestered,  or  provisionally  seized,  shall  be 
released  on  the  defendant  executing  a  bond  with  security,  the 
sheriff  shall  be  bound  to  return  the  bond  so  taken  by  him  into 
court  in  the  same  manner  as  is  provided  for  bail  bonds.  The 
plaintiff  shall  have  the  same  right  and  the  same  time  to  ob- 
ject to  the  insufficiency  of  the  security  on  such  bonds  as 
to  the  security  on  bail  bonds,  and  in  case  the  security  on 
said  bond  should  be  declared  insufficient,  the  sheriff  shall  be 
liable  as  surety  on  the  said  bonds,  and  the  said  acts  of  surety 
shall  be  assigned  by  the  sheriff  to  the  plaintiff  in  the  same 
manner  as  bail  bonds. 

Stat.  17th  March,  1852,  p.  155. — Article  two  hundred 
and  fifty-nine  of  the  Code  of  Practice  which  reads  as  follows, 
to  wit ;  The  garnishee,  if  he  appear  either  in  person  or  by  his 
attorney,  may,  moreover,  in  every  stage  of  the  suit,  have  such 
attachment  set  aside,  by  delivering  to  the  sheriff  his  obligation 
for  the  sum  exceeding  by  one-half  that  which  is  demanded, 
with  the  surety  of  a  good  and  solvent  person,  residing  within 
the  jurisdiction  of  the  court  where  the  action  was  brought, 
that  he  will  satisfy  such  judgment  as  may  be  rendered  against 
him  in  the  suit  pending,  shall  be  so  amended  as  to  read  thus  : 
the  defendant  if  he  appear  either  in  person  or  by  his  attorney, 
may,  moreover,  in  every  stage  of  the  suit,  have  the  property 
attached  released  by  delivering  to  the  sheriff  his  obligation  for 
the  sum  exceeding  by  one-half  the  value  of  the  property  at- 
tached, with  the  surety  of  a  good  and  solvent  person  residing 
within  the  jurisdiction  of  the  court  where  the  action  was 
brought,  that  he  will  satisfy  such  judgment,  to  the  value  of 
the  property  attached,  as  may  be  rendered  against  him  in  the 
suit  pending. 

4  N.  S.  117  ;  10  L.  108  ;  14  L.  43  ;  18  L.  58  ;  1  R.  278 ;  2  R.  411 ;  3.  R.  363 ; 
8  R.  30;  9  R.  418  ;  2.  A.  243  ;  6  A.  440. 

Art.  260. — If,  on  the  contrary,  the  party  fail  to  appear, 
either  in  person  or  by  his  attorney,  the  court  shall  appoint  an 


OF    THIRD   lERSONS.  135 

advocate  to  represent  him  and  defend  the  suit  ;  and  a  reason- 
able delay  shall  be  given  to  such  advocate,  to  enable  him  to 
communicate  with  the  party  he  represents,  in  order  to  obtain 
th'e  information  necessary  to  defend  the  suit. 

4  N.  S.  498 ;  8  N.  S.  351  ;  5  L.  45 ;  12  L.  155 ;  1  R.  273 ;  2  R.  152 ;  3  R.  232. 

Art.  261. — If  the  property  attached,  and  which  has  been 
seized,  be  of  a  perishable  nature,  and  subject  to  be  lost  or  de- 
teriorated, during  the  pendency  of  the  suit,  the  court  may,  at 
the  request  of  the  plaintiff,  order  the  sale  of  such  property  at 
pubhc  auction,,  after  the  usual  advertisement,  and  after  the 
same  have  been  appreciated  by  two  experts,  appointed  for  that 
purpose,  in  order  that  the  proceeds  of  such  sale  may  remain  in 
deposit  in  the  hands  of  the  sheriff,  until  the  definitive  decision 
of  the  suit. 

Art.  262. — The  garnishee,  who  has  been  cited  in  a  suit, 
must  put  in  his  answer,  within  the  usual  delay,  declaring  in 
the  same,  fairly  and  truly,  what  property  belonging  to  the  de- 
fendant he  has  in  his  possession,  by  whatever  title  he  may  pos- 
sess the  same,  as  well  as  what  sums  he  may  owe  to  such  de- 
fendant, whether  the  same  be  due  or  not  yet  due  ;  and  if  in- 
terrogated on  facts  and  articles,  he  must  answer  under  oath, 
clearly  and  categorically,  each  question  put  to  him,  touching 
such  matter. 

5  N.  S.  308 ;  5  L.  85 ;  12  R.  445. 

Art.  263. — If  the  garnishee,  to  whom  interrogatories  have 
been  put,  refuse  or  neglect  to  answer  the  same  under  oath,  in 
the  delay  of  the  law,  such  refusal  or  neglect  shall  be  consid- 
ered as  a  confession  of  his  having  in  his  hands,  property  be- 
longing to  the  debtor,  sufficient  to  satisfy  the  demand  made 
against  such  debtor,  and  judgment  shall  be  rendered  against 
him  for  the  amount  claimed  by  the  defendant,  with  interest 
and  costs. 

6  L.  86  ;  8  L.  158,  162,  271 ;  8  L.  171  ;  12  L.  17  ;  12  R.  484 ;  2  A.  565. 

Art.  264. — Although  the  answer  of  the  garnishee  to  the 
question  put  to  him,  be  made  under  oath,  the  defendant  may. 


136  or    ATTACHMENT   IN    THE   HANDS,    ETC. 

nevertheless,  show  the  same  to  be  false,  either  by  positive 
written  proof,  or  by  the  oath  of  two  witnesses,  worthy  of  be- 
lief, in  the  same  manner  as  when  interrogatories  on  flicts  and 
articles  have  been  put  to  a  party  in  a  suit  ;  and  if  it  be  proved 
by  such  evidence,  that  the  garnishee  has  in  his  hands  property 
or  effects  belonging  to  the  party  against  whose  property  the 
attachment  has  been  granted,  or  that  he  be  indebted  to  him 
in  any  amount,  such  property  and  effects,  as  well  as  such  sum 
as  may  be  due  by  him,  shall  be  sulyect  to  satisfy  such  judg- 
ment as  may  be  rendered  against  the  defendant. 

In  the  second  line  for  "defendant"  read  "plaintiff."  1  L.  230;  3  A.  430. 

Aet.  265. — In  suits  where  attachment  is  demanded,  after 
answer  filed,  or  if  the  defendant  has  failed  to  answer,  the 
plaintiff  must  proceed  in  the  ordinary  form  to  obtain  judgment, 
and  on  execution  of  the  same,  have  so  much  of  the  property 
attached  and  sold,  as  will  sufiice  to  satisfy  the  judgment. 

See  amendments  to  art.  2i6 ;  5  N.  B.  30Y  ;  8  L.  loY  ;  12  L.  \1 ;  15  L.  239; 
14  L.  449,  513  ;  17  L.  550,  558 ;  1  R.  436  ;  3  A.  430 ;  6  A.  768. 

Aet.  266. — If  the  debtor,  whose  property  has  been  at- 
tached, has  filed  his  answer,  or  has  given  instruction  to  the  ad- 
vocate appointed  by  the  court  to  defend  him,  the  act  of  surety 
given  by  the  plaintiff  shall  be  cancelled  as  soon  as  judgment 
shall  have  been  rendered  in  favor  of  such  plaintiff. 

But,  if  the  residence  of  the  debtor,  whose  property  has 
been  attached,  be  unknown,  and  the  advocate,  appointed  to 
defend  him,  has  been  unable  to  communicate  with  him,  the 
act  of  surety,  so  given  by  the  plaintiff,  shall  continue  in  fuU 
force,  one  whole  year  after  the  date  of  the  judgment  given  in 
favor  of  the  plaintiff,  in  order  to  secure  the  recourse  which  the 
debtor  may  have,  as  provided  in  the  following  article. 

Aet.  267. — The  absent  debtor,  against  whom  judgment 
has  been  so  rendered,  may,  witliin  two  years  after  such  judg- 
ment, obtain  the  reversal  of  the  same,  if  he  prove  that  the  dis- 
tance at  which  he  lived  from  the  place  where  the  attachment 
was  obtained,  has  prevented  his  being  apprised  of  the  pro- 
ceedings had  against  liim,  and  that  the  plaintiff  has  availed 


OF    SEQUESTKATION.  137 

himself  of  his  absence  to  ohtain  payment  of  a  debt,  either  al- 
ready paid  in  totality,  or  partly  discharged,  or  which  did  not 
exist. 

Art.  268. — In  case  such  e\adence  be  shown  by  the  party 
whose  property  has  been  attached,  judgment  shall  be  given 
against  the  plaintiff  in  the  first  suit,  not  only  for  such  amount 
as  he  may  have  recovered  above  the  sum  wliich  was  really  due 
to  liim,  but  also  for  such  damages  as  may  have  been  sustained 
by  the  defendant ;  but  as  relates  to  the  security,  such  action, 
if  brought  against  him,  must  be  instituted  within  the  year 
following  the  judgment  wrongfully  obtained. 


§  3,  Of  sequestration. 

Art.  269. — Sequestration  is  a  mandate  of  the  court,  or- 
dering the  sheriff,  in  certain  cases,  to  take  in  his  possession, 
and  to  keep,  a  thing  of  which  another  person  has  the  posses- 
sion, until  after  the  decision  of  a  suit,  in  order  that  it  be  de- 
livered to  liim  who  shall  be  adjudged  entitled  to  have  the  pro- 
perty or  possession  of  that  tiling.  This  is  what  is  properly 
called  a  judicial  sequestration. 

See  amendment  to  art.  237  ;  10  R.  147.  ^ 

Art.  270. — In  tliis  acceptation,  the  word  sequestration 
does  not  mean  a  judicial  deposit,  because  sequestration  may 
exist  together  with  the  right  of  administration,  while  mere  de- 
posit does  not  admit  it. 

7  L.  505. 

Art.  271.— All  species  of  property,  real  or  personal,  as 
well  as  the  revenue  proceeding  from  the  same,  may  be  seques- 
tered. 

Art.  272. — Obhgations,  and  titles  may  also  be  seques- 
tered, when  their  ownersliip  is  in  dispute. 

Art.  273. — Judicial  sequestration  is  generally  ordered  only 


138  OF   SEQUESTRATION. 

» 

at  the  request  of  one  of  the  parties  to  a  suit ;  there  are 
cases,  nevertheless,  where  it  is  decreed  by  the  court,  wthout 
such  request,  or  is  the  consequence  of  the  execution  of  judg- 
ments. 

The  rules  relative  to  sequestration,  in  consequence  of  the 
execution  of  judgment,  ^ill  be  found  in  the  chapter  which 
treats  of  the  execution  of  judgments. 

6  L.  5-12 ;  G  A.  26. 

Art.  274. — The  court  may  order,  ex  officio,  the  sequestra- 
tion of  real  property  in  suits,  where  the  ownership  of  such 
property  is  in  dispute,  and  when  one  of  the  contending  parties 
does  not  seem  to  have  a  more  apparent  right  to  the  possession 
than  the  other. 

In  such  cases,  sequestration  may  be  ordered  to  continue, 
imtil  the  question  of  ownership  shall  have  been  decided. 

3  A.  26'7. 

Art.  275. — Sequestration  may  be  ordered,  at  the  request 
of  one  of  the  parties  in  a  suit,  in  the  following  cases  : 

1.  When  one,  who  had  possessed  for  more  than  one  year, 
has  been  evicted  through  violence,  and  sues  to  be  restored  to 
his  possession. 

2.  When  one  sues  for  the  possession  of  movable  property, 
or  of  a  slave;  and  fears  that  the  party  having  possession,  may 
ill-treat  the  slave,  or  send  eitlier  that  slave,  or  the  property  in 
dispute,  out  of  the  jurisdiction  of  the  court,  during  the  pen- 
dency of  the  suit. 

3.  When  one  claims  the  ownership,  or  the  i)Ossession  of 
real  property,  and  has  good  ground  to  aiDprehend,  that  the  de- 
fendant may  make  use  of  his  possession,  to  dilapidate,  or  to 
waste  the  fruits  or  revenues  produced  by  such  property,  or 
convert  them  to  his  own  use. 

4.  When  a  woman  sues  for  a  separation  from  bed  and 
board,  or  only  a  separation  of  property  from  her  husband,  and 
has  reason  to  apprehend  that  he  will  ruin  her  dotal  property, 


OF    SEQUESTRATION.  139 

or  waste  the  fmits  or  revenues  produced  by  tlic  same  during 
the  pendency  of  the  action. 

5.  When  one  has  petitioned  for  a  stay  of  proceedings,  and 
a  meeting  of  his  creditors,  and  such  creditors  fear  that  he 
may  avail  himself  of  such  stay  of  proceedings,  to  place  the 
whole,  or  a  part  of  his  property,  out  of  their  reach. 

6.  A  creditor  by  special  mortgage  shall  have  the  power  of 
sequestering  the  mortgaged  property,  when  he  apprehends 
that  it  will  be  removed  out  of  the  state  before  he  can  have  the 
benefit  of  his  mortgage,  and  wdll  make  oath  of  the  facts  which 
induced  his  apprehension. 

Stat  7th  Jpril,  1826,  p.  170.— §  9.  In  addition  to  the 
cases  mentioned  in  articles  two  hundred  and  seventy-four  and 
two  hundred  and  seventy-five,  the  plaintiif  may  obtain  a  se- 
questration in  all  cases  where  he  has  a  lien  or  privilege  on  pro- 
perty, upon  complying  with  the  requisites  provided  by  law. 

Stat.  20th  March,  1839,  p.  164.— §  6.  Article  two  hun- 
dred and  seventy-five  of  said  code  shall  be  so  amended,  that, 
in  addition  to  the  cases  therein  mentioned,  a  sequestra- 
tion may  be  ordered  in  all  cases,  when  one  party  fears  that  the 
other  will  conceal,  part  ivitli,  or  dispose  of  the  movable  or 
slave  in  his  possession,  during  the  pendency  of  the  suit,  on 
compl}dng  with  the  requisitions  of  the  law. 

5  N.  S.  43  ;  6  N.  S.  618  ;  3  L'.  2';9 ;  4  L.  222 ;  6  L.  345 ;  6  L.  541 ;  "7  L.  343,  406,  486 ; 

9  L.  26 ;  10  L.  "77,471 ;  11  L.  444  ;  14  L.  536  ;  1  R.  531 ;  2  R.  162  ;  4  R.  462  ; 

10  R.  147  ;  11  R.  145  ;  1  A.  12,  307  ;  4  A.  184. 

Art.  276. — A  plaintiff,  wishing  to  obtain  an  order  of  se- 
questration, in  any  one  of  the  cases  above  provided,  must  an- 
nex to  the  petition  in  which  he  prays  for  such  an  order,  an 
affidavit  setting  forth  the  cause  for  which  he  claims  such  order : 
he  must,  besides,  execute  liis  obligation  in  favor  of  the  defend- 
ant, for  such  sum  as  the  court  shall  determine,  Avith  the 
surety  of  one  good  and  solvent  person,  residing  wthin  the  ju- 
risdiction of  the  court,  to  be  responsible  for  such  damages  as 
the  defendant  may  sustain,  in  case  such  sequestration  should 
have  been  wrongfully  obtained. 


140  OF    SEQUESTRATION. 

Stat  25th  March,  1828,  p.  150.— §  4.  In  aU  cases  where 
attachments,  arrests,  and  sequestrations  are  demandable,  the 
plamtiff,  his  agent  or  attorney  ha\'in2;  made  affida^-it  and 
given  bond,  in  conformity  to  law,  and  liaving  filed  the  same 
in  court,  it  shall  be  the  duty  of  the  clerk  to  issue,  forthmth, 
the  process  required,  without  any  petitiim  being  then  present- 
ed ;  but  the  usual  petition  shall  be  filed  on  the  day  succeed- 
ing that  on  which  the  said  process  shall  have  issued,  except  in 
cases  where  a  Sundavj  Fourth  of  July,  or  Eighth  of  January, 
shall  be  the  succeeding  day  ;  then,  on  the  next  day  succeed- 
ing such  Sunday,  Fourth  of  July,  or  Eighth*  of  January ; 
and  the  sheriff  shall  proceed  immediately  to  execute  said  pro- 
cess according  to  its  tenor. 

5  N.  S.  45  ;  6  N.  S.  495 ;  7  K  S.  406 ;  5  L.  209,  345  ;  6  L.  272 ;  14  L.  92 ; 
11  R.  145;  1  A.  12;  2  A.  447. 

Art.  277. — When  security  is  given,  in  order  to  obtain  the 
sequestration  of  real  property  which  brings  a  revenue,  the 
judge  must  require  that  it  be  given  for  an  amount  sufficient 
to  compensate  the  defendant,  not  only  for  all  damages  wliich 
he  may  sustain,  but  also  for  the  privation  of  such  revenue, 
during  the  pendency  of  the  action. 

6  N.  S.  47,  494 ;  7  N.  S.  407  ;  C  L.  270. 

Art.  278. — The  plaintiff,  when  he  prays  for  a  sequestra- 
tion of  the  property  of  one  who  has  failed,  is  not  required  to 
give  such  security,  though  that  i)roperty  Imngs  in  a  revenue. 

Art.  279. — A  defendant,  against  whom  a  mandate  of  se- 
questration has  been  obtained^  except  in  cases  of  fliilm-e,  may 
have  the  same  set  aside,  by  executing  his  obligation  in  fiivor 
of  the  sheriflf,  with  one  good  and  solvent  surety,  for  whatever 
amount  the  judge  may  detennine,  as  being  equal  to  the  value 
of  the  property  to  be  left  in  his  possession. 

Stat.  5th  March,  1842,  p.  204. — In  actions  of  sequestra- 
tion, whenever  the  defendant  shaU  fail  or  neglect  to  comply 
with  the  provisions  of  the  279th  article  of  the  Code  of  Prac- 
tice, within  ten  days  after  the  seizure  of  the  property  by  the 


OF    SEQUESTRATION.  141 

sheriff,  it  shall  then  be  lawful  for  the  plaiutiflp,  his  agent  or 
attorney  in  fact  to  give  similar  bond  and  security  to  the  sher- 
iff as  tliose  required  by  law  from  the  defendant,  and  to  take 
the  property  sequestrated  into  his  possession, 

6  N.  S.  47  ;  6  N.  S.  43 ;   11   L.  444;  12  L.  138;  8  R.  256 ;  9   R.  535;  10  R. 
147;  4  A.  372;  6  A.  226. 

Art.  280. — The  security  thus  given  by  the  defendant, 
when  the  property  sequestrated  consists  in  movables  or  m 
slaves,  shall  be  responsible,  that  he  shall  not  send  away  the 
same  out  of  the  jurisdiction  of  the  court ;  that  he  shall  not 
make  an  improper  use  of  them  ;  and  that  he  will  faithfully 
present  them,  after  definitive  judgment,  in  case  he  should  be 
decreed  to  restore  the  same  to  the  plaintiff. 

8  R.  256 ;  9  R.  535 ;  10  R.  147  ;  4  A.  372 ;  6  A.  377. 

Art.  281. — As  regards  landed  j^roperty,  this  security  is 
given  to  prevent  the  defendant,  while  in  possession,  from 
wasting  the  property,  and  for  the  faithful  restitution  of  the 
fruits  that  he  may  have  received  since  the  demand,  or  of 
their  value  in  the  event  of  his  being  cast  in  the  suit. 

See  amendment  to   art.  259;  Stat.  20lh  ITarch,  1880,  p.  168.— §  18;  12  L 
138;  14  L.  245;  2  R.  69. 

Art.  282. — When  the  sheriff  has  sequestrated  property 
pursuant  to  an  order  of  the  court,  he  shall,  after  serving  the 
petition  and  the  copy  of  the  order  of  sequestration  on  the  de- 
fendant, send  liis  retm'u  in  writing  to  the  clerk  of  the  court 
which  gave  the  order,  stating  in  the  same,  in  what  manner 
the  order  was  executed,  and  annex  to  such  return  a  true  and 
minute  inventory  of  the  property  sequestrated,  drawn  by  liim, 
in  the  presence  of  two  witnesses. 

4  N.  S.  242. 

Art.  283. — The  sheriff,  wliile  he  retains  possessign  of  se- 
questered property,  is  bound  to  take  proper  care  of  the  same, 
and  to  admiuister  the  same,  if  it  be  of  such  nature  as  to  ad- 
mit of  it,  as  a  prudent  father  of  a  family  administers  liis  own 
affairs.     He  may  confide  them  to  the  care  of  guardians  or 


142  OF   PROVISIONAL    SEIZURE. 

jverseers,  for  whose  acts  he  remains  responsible,  and  he  will  bo 
entitled  to  receive  a  just  compensation  for  his  administration, 
to  be  determined  by  the  court,  to  be  paid  to  him  out  of  the 
proceeds  of  the  property  sequestered,  if  judgment  be  given  in 
favor  of  the  plaintiff. 

14  L.  03 ;  n  L.  579 ;  1  R.  186 ;  7  R.  82,  198 ;  10  R.  147 

§  4.   Of  Provisional  Seizure. 

Art.  284. — The  plaintiff  may,  in  certain  cases,  hereafter 
provided,  obtain  the  provisional  seizure  of  the  property  which 
he  holds  in  pledge,  or  on  whicli  he  has  a  privilege,  in  order  to 
secure  the  payment  of  his  claim. 

3  L.  451 ;  3  R.  7. 

Art.  285. — Provisional  seizure  may  be  ordered  in  the  fol- 
lowing cases  : 

1.  In  executory  proceedings,  when  the  plaintiff  sues  on  a 
title  importing  confession  of  judgment. 

2.  When  a  lessor  pays  for  the  seizure  of  furniture  or  pro- 
perty used  in  the  house,  or  attached  to  the  real  estate  which 
he  has  leased. 

3.  When  a  seaman,  or  another  person,  employed  on  board 
of  a  ship  or  water-craft,  navigating  within  the  State,  or  per- 
sons having  furnished  materials  for,  or  made  rcjniirs  to  such 
ship,  or  water-craft,  prays  that  the  same  may  be  seized,  and 
prevented  from  departing,  until  he  has  been  j^aid  the  amount 
of  his  claim. 

4.  When  the  proceedings  are  in  rem,  that  is  to  say,  against 
the  thing  itself,  which  stands  jiledged  for  the  debt,  when  the 
property  is  abandoned,  or  in  cases  where  the  owner  of  the 
thing  is  unkno"svn  or  absent, 

7  N.  S.  154;  8  N.  S.  107,  467;  8  L.  611;  10  L.  22;  11  L.  173,  194;  15  L- 
374  ;  6  R.  208  ;  1  A.  230. 

Art.  286. — The  manner  of  conducting  executory  proceed- 
ings will  be  provided  hereafter. 

Art.  287. — When  a  lessor  sues  for  the  rent  due  to  him," 


OF   PROVISIONAL    SEIZURE.  143 

he  may  obtain  the  provisional  seizure  of  such  furniture  or  pro- 
perty as  may  be  found  in  the  house,  or  attached  to  the  land 
leased  by  him,  if  at  the  foot  of  the  petition,  in  which  he  praya 
for  such  seizure,  he  state  under  oath,  that  the  sum  he  sues  for 
(the  amount  of  which  nnist  be  specified)  is  really  owing,  and 
that  he  has  good  cause  to  fear  that  the  lessee  may  move  such 
furniture  or  property  out  of  the  premises,  in  order  to  deprive 
him  of  his  hen  on  the  same. 

Stat.  20th  March,  1839,  p.  172.— §  22.  That  article  two 
hundred  and  eighty-seven  of  said  code  be  so  amended  that  a  les- 
sor may  obtain  a  wiit  of  pronsional  seizm-e  even  before  the  rent 
be  due— and  that  hereafter,  in  all  cases  it  shall  be  suf- 
cient  to  entitle  a  lessor  to  said  writ,  to  swear  to  the  amount 
which  he  claims,  whether  due  or  not  due,  and  that  he  has  good 
reasons  to  beheve  that  said  lessee  will  remove  the  furniture  or 
property  on  which  he  lias  a  lien  or  piivilcge  out  of  the  premi- 
ses, and  that  he  may  be  thereby  deprived  of  his  lien,  provided 
that  in  case  the  rent  be  paid  when  it  fall  due,  the  costs  of  the 
seizure  shall  be  paid  by  the  lessor,  unless  he  prove  that  the 
lessee  did  actually  remove  or  attempt  or  intend  to  remove  the 
property  out  of  the  premises. 

1  A.  230. 

Art.  288. — The  lessor  may  seize,  even  in  the  hands  of  a 
third  person,  such  furniture  as  was  in  the  house  leased,  if  the 
same  has  been  removed  by  the  lessee,  provided  he  declare  on 
oath,  that  the  same  has  been  removed,  without  his  consent, 
within  fifteen  days  previous  to  his  suit  being  brought. 

(  5  R.  268. 

Art.  289. — Sailors,  or  other  persons,  employed  on  board 
of  any  ship,  or  vessel,  or  other  water-craft,  trading  ^nthin  the 
State,  as  well  as  persons  who  have  furnished  materials  for,  or 
made  repairs  to  such  vessels,  or  crafts,  may,  at  the  same  time 
they  bring  their  action  against  the  captain,  master,  or  con- 
signees of  such  vessels  or  crafts,  for  the  amount  due  to  them 
obtain  the  pro\isional  seizure  of  such  vessels,  or  crafts,  to  secure 


144  OF    TROVISIONAL    SEIZURE. 

the  amount  of  their  claims,  provided  they  state  on  oath,  at 
the  foot  of  their  petition,  that  tlie  sum  sued  for  (specifying 
the  amount  of  the  same)  is  really  owing  ;  that  such  vessels, 
or  crafts,  are  on  the  eve  of  leaving  the  jurisdiction  of  the 
com't,  and  that  they  are  apprehensive  of  losing  the  amount 
they  claim,  should  such  vessels  or  crafts  depart,  previous  to 
their  demand  having  been  satisfied. 

Such  seizure  may  be  made  even  of  ships  or  vessels  trading 
out  of  the  State,  at  the  suit  of  persons  claiming  payment  for 
materials  furnished  for,  or  re^^au's  made  upon  such  sliips  or 
vessels. 

Stat  20th  March,  1839,  p.  166.— §  12.  Whenever  ships 
or  other  vessels  are  pro\dsionally  seized,  the  defendant  shaU  be 
permitted  to  have  the  seizure  set  aside  on  executing  a  bond  in 
favor  of  the  plaintiff,  as  in  cases  of  attachment. 

8  L.  42,  191 ;  17  L.  160;  2  R.  239. 

Art.  290. — One,  to  whom  the  nature  of  his  claim,  or  the 
law,  gives  a  privilege,  on  a  thing,  either  lost  or  abandoned  by 
its  owner,  or  whose  owner  is  either  unknown  or  absent,  may 
proceed  against  the  thing  itself,  on  which  he  has  a  privilege, 
and  have  the  same  seized  and  sold,  to  satisfy  his  claim,  pur- 
suant to  the  forms  hereafter  prescribed. 

1  A.  136. 

Art.  291. — The  creditor  who  proceeds,  in  rem,  in  the 
manner  prescribed  in  the  preceding  article,  must  present  a  pe- 
tition to  a  competent  judge,  stating  on  oath  at  the  foot  of  the 
same,  the  amount  and  the  nature  of  his  demand,  that  the 
thing  on  which  he  has  his  privilege,  has  been  either  lost  or 
abandoned  by  the  owner,  of  whose  name  he  is  ignorant,  or 
that  it  belongs  to  some  one  unkno^vn  to  him,  or  absent.  He 
must  pray  besides,  that  the  thing  be  seized  and  sold,  to  satisfy 
his  claim,  and  to  pay  the  costs  of  the  suit. 

3  L.  451;  1  A.  136. 

Art.  292. — The  court,  to  whom  such  petition  shall  be  pre- 
sented, may,  if  the  case  appears  to  them  one  in  which  the 


OF    INJUNCTION^  145 

plaintiff  is  allowed  to  proceed,  in  rem,  order  that  the  sheriff 
shall  seize  and  take  possession  of  the  thing,  directing  at  the 
same  time,  that  pubHc  notice  be  given,  to  all  persons  interest- 
ed, to  appear  vni\m\  fifteen  days,  to  answer  to  the  petition  so 
presented.  - 

3  L.  451. 

Akt.  293. — The  sheriff  must  give  this  notice,  by  advertise- 
ments, pubhshed  in  French  and  in  EngHsh,  three  different 
times,  in  at  least  one  paper,  if  any  be  published  in  the  place, 
or  by  affixing  the  same  at  the  usual  places,  if  there  be  no 
newspaper  pubhshed  in  the  place. 

_   No.  269.  Stat.  29ih  April,  1853.— An  Act  relative  to  Ju- 
dicial Advertisements.  §  1.  In  all  cases  in  wliich  advertisements 
are  required  to  be  made  in  relation  to  judicial  proceedings,  or  in 
the  sale  of  property  under  judicial  process,  such  advertisements 
shall  be  pubhshed  in  a  newspaper  printed  in  the  parish  in  wliich 
such  judicial  proceedings  are  carried  on,  or  in  which  such  sale  i? 
to  take  place  ;  and  if  there  be  no  news2)aix!r  published  in  such 
parish,  such  advertisements  shall  be  pubhshed  by  posting  the 
same  on  the  door  of  the  court-house  and  two  other  public  places 
in  different  parts  of  said  parish;  Pronded,  that  it  shall  be  the 
duty  of  the  sheriff,  or  other  officer  pubhsliing  such  advertise- 
ments, to  pubhsh  the  same  in  the  English  language  only,  ex- 
cept when  the  defendant  in  the  judicial  process,  or  the  person 
dnecting  the  sale,  shall  request  the  said  advertisement  to  be 
pubhshed  in  the  French  language  also  ;  And  provided,  further, 
that  tliis  proviso  shall  not  apply  to  the  parishes  of  St.  Landry' 
Calcasieu,  Lafoyette,  Vermillion,   St.   Martin,   St.    Mary,   St! 
Bernard,  West  Baton  Kouge,  St.  Charles,  Lafourche,  Avoyel- 
les, Nacliitoches,  Plaquemine,  St.  James,  Assumption,  Ascen- 
cion,  Terrebonne,   Pointe  Coupee,  Iberville,  and  St.  John  the 
Baptist. 

§  2.  When  there  are  two  or  more  newspapers  pubhshed 

in  the  jiarish  where  such  proceedings  are  had,  or  such  sale  is 

to  be  made,  the   defendant  in  the  judicial  process  shall  have 

the  right  of  selecting  the  newspaper  in  which  said  advertisc- 

10 


146  OF    INJUNCTION. 

ment  is  to  be  made  ;  Provided  said  selection  be  made  within 
three  days  after  the  notice  of  such  proceedings  or  the  seizure 
made  under  said  ])roccss,  and  if  the  defendant  neglect  to  se- 
lect, then  the  plaintiff  .shall  liave  right  to  do  so. 

§  3.  The  costs  of  publishing  advertisements  required  by 
law  as  hereinbefiire  jirovided,  shall  not  exceed  the  rate  of  one 
dollar  for  every  hundred  words  for  the  first  insertion,  and  at 
the  rate  of  fifty  cents  for  every  subsequent  insertion  ;  Provid- 
ed that  in  case  the  said  advertisements  cannot  be  published  at 
the  rates  herein  stipulated,  they  shall  be  pubhshed  by  posting 
the  same  at  the  door  of  the  court-house  and  two  other  public 
places  in  the  parish  wherein  such  j^ublication  is  to  be  made. 

§  4.  The  tliird  section  of  this  act  shall  not  apply  to  the 
city  of  New  Orleans  ;  and  all  laws  contrary  hereto  are  hereby 
repealed. 

Art.  294. — At  the  expiration  of  such  delay,  if  no  one  ap- 
pear to  answer  the  petition,  the  plaintiff  may  require  that  an 
advocate  be  appointed  to  defend  the  absent  owner,  and  after 
having  obtained  judgment,  as  in  ordinaiy.  suits,  the  property 
may  be  sold  in  execution,  in  order  that  the  amount  of  Ins  de- 
mand be  paid  out  of  the  ^iroceeds. 

Art.  295. — The  plaintiff  shall  not  be  required  to  give  se- 
curity, in  order  to  obtain  the  provisional  seizure  of  the  thing 
which  he  holds  in  pledge,  or  on  which  he  has  a  pri\Tilege,  in 
any  of  the  cases  mentioned  above,  but  he  shall  be  personally 
responsible  for  all  damage  suflvrcd  by  the  defendant,  should 
the  seizure  have  been  wrongfully  obtained. 

4  A.  144. 


§  5.  Of  Injunction. 

Art.  296. — Injunction,  or  prohibition,  is  a  mandate  ob- 
tained from  a  court,  by  a  plaintiff,  prohibiting  one  from  doing 
an  act  wliich,  he  contends,  may  be  injurious  to  him,  or  impair 
a  riffht  which  he  claims. 


OF    INJUNCTION".  147 

Stat  25th  March,  1828,  p.  150.— §  2.  In  addition  to  the 
cases  mentioned  in  the  two  hundred  and  ninety-sixth,  up  to 
the  three  hundred  and  tliird  article  of  the  Code  of  Practice, 
the  judge  may  grant  an  injunction,  on  the  application  of  any 
purchaser  whose  property  is  seized  for  the  payment  of  the  price 
of  a  tiling  sold  to  him,  whenever  a  suit  has  been  instituted 
against  him  for  the  said  property. 

4  N.  S.  390 ;  5  N.  S.  501 ;  1  R.  442 ;  10  R.  68. 

Art.  297. — The  injunction  may  be  directed  either  against 
the  defendant  in  the  suit,  or  against  tliird  persons  not  parties 
to  it. 

■ZR,  442;  10  R.  68. 

Art.  298. — The  injunction  must  be  granted,  and  be  di- 
rected against  the  defendant  himself,  in  the  following  cases  : 

1.  When  the  defendant  is  in  the  act  of  building,  or  con- 
stnicting  some  work,  tending  to  obstruct  a  place  of  which  the 
public  has  the  use'; 

2.  When  the  defendant  is  constructing  either  within  the 
bed  of  a  navigable  river,  or  on  its  banks,  works  which  may 
prevent  the  na\'igation  of  such  river,  or  render  it  more  diffi- 
cult, or  prevent  ships  or  other  craft  from  easily  landing  and 
unloading  on  the  bank  of  such  river  ; 

3.  When  the  defendant  has  commenced  some  buildins:  or 
some  other  works,  on  a  real  estate,  the  ownership  or  possession 
of  which  is  contested  by  the  plaintiff,  or  pretends  that  such 
building  or  works  would  be  injurious  to  liis  interest  ; 

4.  When  the  defendant  opposes  the  execution  of  works, 
necessary  for  the  repairs  of  pubKc  levees,  dikes,  roads,  bridges, 
canals,  drains,  and  the  like  ; 

5.  When  the  defendant  disturbs  the  plaintiff,  in  the  ac- 
tual and  real  possession,  which  such  plaintiff  has  had  for  more 
than  one  year,  either  of  a  real  estate  or  of  a  real  right,  of 
which  he  claims,  either  the  ownership,  the  possession,  or  the 
enjoyment  ; 

6.  When  a  woman  has  sued  her  husband  for  a  separation 


148  OF    INJUNCTION. 

of  property,  or  for  a  separation  from  bed  and  property,  and 
fears  that  lie  will,  during  the  pendency  of  the  suit,  dispose  to 
her  prejudice  of  the  property  either  held  in  community,  or  on 
which  she  has  a  privilege  for  her  dotal  rights  ; 

7.  When  the  sheriff,  in  execution  of  a  judgment  has  seiz- 
ed property  not  belonging  to  the  defendant,  and  insists  on  sell- 
ing the  same,  disregarding  the  opposition  of  him  who  alleges 

*ihat  he  is  the  real  owner,  or  is  guilty  of  any  other  illegal  act 
in  the  execution  of  his  office  ; 

8.  When  the  ownersliip  of  an  estate,  real  or  personal,  is 
in  dispute,  and  the  plaintiff  fears  that  the  defendant,  who  is 
in  possession  of  such  property,  may  take  advantage  of  his  jws- 
Bcssion  to  sell,  or  to  dispose  of  such  property  in  any  other 
manner  during  the  pendency  of  the  suit. 

Stat.  1th  Ajrril,  1826,  p.  170.— §  9.  In  addition  to  the 
cases  enumerated  in  article  two  hundred  and  ninety-eight,  in- 
junctions may  be  granted  in  all  cases  to  stay  execution,  where 
payment  is  alleged  to  have  been  made  after  judgment  render- 
ed, where  compensation  is  pleaded  against  said  judgment,  or 
where  the  sheriff  is  proceeding  on  said  execution  contrary  to 
some  provision  of  law,  upon  the  petitioner's  making  affidavit 
of  the  flicts  alleged,  in  order  to  obtain  the  injunction  and  upon 
complying  with  ihe  requisites  prescribed  by  law. 

Stat.  I6th  Flhruary,  1825,  p.  116.— §  1.  From  and  after  the 
passage  of  this  act,  no  judge  of  any  court  estabhshed  in  the 
State,  shall  enjoin  any  judgment  or  execution  on  an  allegation 
of  compensation,  set-off,  or  subsequent  payment,  except  for 
the  amount  of  such  sum  i)leadcd  {in  compensation,  set-off  or 
payment  as  aforesaid  ;  as  shall  be  ostablishcd  by  the  defendant, 
according  to  law.  And  that  such  judgment  for  any  surplus 
that  may  exist,  shall  and  may  be  executechin  all  respects,  as 
if  no  such  injunction  had  been  granted* 

4  N.  S.  91,93;  5  N.  S.  126;  7  N.  S.  C59;  8  N.  S.  334;  8  N.  S.  685;  3  L.  220; 
4  L.  333,  402;  6  L.  39 ;  7  L.  65 ;  8  L.  75,  282;  9  L.  a2,  444;  10  L.  474;  11  L. 
216;  7  R.  442;  10  R.  68;  see  10  L.  260. 

Akt.  299. — The  injunction  may  be  directed  against  third 


OF    INJUNCTION.  149 

persons  not  parties  to  a  suit,  in  the  cases  enumerated  in  the 
following  articles  : 

Art.  300. — The  sheriff  may  he  enjoined  from  paying  to 
the  plaintiff  the  proceeds  of  the  property  seized,  if  a  third 
person  oppose  such  payment,  alleging  that  he  is  entitled  to  he 
paid  out  of  such  proceeds  in  preference  to  the  plaintiff,  hav- 
ing a  previous  h\^iotliecation  or  privilege,  or  any  other  right  hy 
which  he  claims  to  be  paid  in  preference  to  the  plaintiff. 

10  R.  28,  68. 

Art.  301. — The  sheriff  may  he  enjoined  from  paying  the 
claim  of  the  plaintiff  out  of  the  jiroceeds  of  the  sale  of  the 
property  seized,  if  a  third  person  oppose  such  pajoiient,  alleg- 
ing that  the  defendant  had  no  other  property  to  pay  his  debts, 
except  that  which  had  been  seized,  and  pray  that  the  proceeds 
of  the  sale  may  be  brought  into  court,  to  be  distributed  among 
all  the  creditors  of  the  defendant,  according  to  the  order  of 
their  respective  privilege  or  hypothecation. 

3  R.  106;  1  R.  72;  10  R.  68,  154;  1  A.  230,  304;  5  A.  736. 

Art.  302. — If  one  be  in  possession  of  property,  of  what- 
ever nature  it  may  be,  whether  the  same  was  placed  in  his 
hands  as  a  deposit  or  otherwise,  and  a  third  person  claims  the 
ownership  of  such  property  by  a  suit,  such  third  person  may 
obtain  an  injunction  directed  against  the  possessor  of  such  j)ro- 
perty,  proliibiting  him  from  disposing  of  the  same,  until  the 
further  order  of  the  court. 

6  L.  296 ;  10  R.  68. 

Ari.  303. — 'Besides  the  cases,  above-mentioned,  courts^  of 
justice  may  grant  injunctions  in  all  other  cases,  when  it  is  ne- 
cessary to  preserve  the  property  in  dispute,  during  the  pen- 
dency of  the  action,  and  to  prevent  one  of  the  parties,  during 
the  continuance  of  the  suit,  from  dilapidating  the  same,  or 
from  doing  some  other  act  injurious  to  the  other  party. 

Stat  25th  March,  1828,  p.  150.— §  2.  In  addition  to  the 
cases  mentioned  in  the  two  hundred  and  ninety-sixth  up  to  the 
three  hundred  and  third  article  of  the  Code  of  Practice,  the 


150  OF    INJUNCTION. 

judge  may  grant  an  injunction,  on  the  application  of  any  pur- 
chaser whose  property  is  seized  for  the  payment  of  the  price 
of  a  thing  sold  to  him,  whenever  a  suit  has  been  instituted 
against  him  for  the  said  property. 

3  N.  S.  83 ;  4  N.  S.  91, 390, 422,  583,  611 ;  5  N.S.  85, 87,  126,  501 ;  6  N.  S.  312, 615; 
7  N.S.  281,659;  8  N.  S.  334,396,422,513,583,685;  2  L.  66 ;  3  L.  Ill;  4  L.  89, 
285,  293,  525  ;  5  L.  75,  89  ;  6  L.  75  ;  7  L.  65  ;  8  L.  101,  273,  281 ;  9  L.  92,  443  ; 
10  L.  474;  11  L.  539;  12  L.  65,  95,  123,124;  14  L.  85,  280;  15  L.  186,  190,433; 
16L.  106,  289;  17  L.  497;  19  L.  171,302;  3  R.  107,  111,  127,  163,226,  273,439; 
10  R.  68. 

Art.  304. — In  order  to  obtain  an  injunction,  the  party  ap- 
plying for  the  same  must  present  a  j)etition  to  that  eifect  to  a 
competent  judge,  stating  under  oath  the  facts  which,  accord- 
ing to  his  belief,  render  an  injunction  necessary,  annexing  to 
his  petition  his  obhgation  in  favor  of  the  defendant,  for  such 
sum  as  the  court  may  determine,  after  ha\'ing  examined  what 
injmy  the  defendant  may  sustain  from  such  injunction,  with 
the  surety  of  one  good  and  solvent  person,  residing  within  the 
jurisdiction  of  the  court,  to  secure  the  payment  of  such  dam- 
ages as  may  have  been  sustained  by  the  defendant,  in  case  it 
should  be  decided  that  the  injunction  had  been  wrongfully  ob- 
tained. 

Stat.  1828,  p.  150. — §  3.  So  much  of  the  article  three 
liundred  and  four,  of  the  Code  of  Practice,  as  makes  it  the 
duty  of  the  judge  to  take  security  in  cases  of  injunctions,  or 
in  any  other  case  in  which  judges  are  required  to  take  securi- 
ties in  cases  of  injunctions,  be  repealed  ;  and  that  it  shall  be 
the  duty  of  the  several  clerks  of  the  district  courts,  before  they 
issue  any  writ  of  injunction,  to  take  from  the  party  requiring 
the  same  a  bond,  "with  one  or  more  good  securities  in  the 
amount  fixed  by  the  judge  granting  the  order,  conditioned  as 
the  law  requires. 

Stat.  25th  Ma.rch,  1831,  p.  102.— §  3.  On  the  trial  of  in- 
junctions, the  surety  on  tlie  bond  shall  be  considered  as  a  party 
plaintiff  in  the  suit ;  and  in  case  the  injunction  be  dissolved, 
the  coiu-t,  in  the  same  judgment,  shall  condemn  the  plaintiff 
and  surety,  jointly  and  severally,  rtp  pay  to  the  defendant,  in- 


OF   INJUNCTION.  151 

terests  at  the  rate  of  ten  per  cent,  per  annum,  on  tlie  amount 
of  the  judgment,  and  not  more  than  twenty  per  cent,  as  dama- 
ges, unless  damages  to  a  greater  amount  be  proved  ;  and  the 
sureties,  in  such  cases,  shall  not  be  allowed  to  avail  themselves 
of  the  plea  of  discussion. 

Stat.  29th  March,  1833,  p.  93.— §  3.  If  a  third  person 
shall  obtain  an  injunction  to  arrest  the  execution  of  a  judg- 
ment between  other  parties,  and  it  shall  be  dissolved,  the 
plaintiff  in  injunction  and  his  security,  shall  stand  in  the  same 
situation,  and  be  subject  to  all  the  responsibihties  and  penal- 
ties imposed  by  the  third  section  of  the  act  entitled  "  An  act 
farther  amending  the  Code  of  Practice,"  approved  March  the 
twenty-fifth,  eighteen  hundred  and  thirty-one,  as  the  plaintiff 
and  his  security  in  the  said  sec  "on,  and  a  similar  judgment 
may  be  given  against  them  on  the  dissolution  of  the  injunc- 
tion. 

6N.S.  287;'7N.  S.  276;2L.  102;  3  !.  103,  221,  291  ;  5  L.  fi2,  62,  81,24^  327 
TL.  36,  SGT;  8  L.  64;  9  L.  14,  385;  10  L.  219,519;  11  L.  479,484;  12  L.  95,670 
13  L.  45,  381 ;  14  L.  88,  277  ;  15  L.  102,  184,  433;  16  L.  102, 106,  222 ;  17  L.  266 
19  L.  303,316;  1  R.  44,  143,  3.17 ;  2  R.  112,  180;213;  3  R.  128,226;  10  R.  68 
S  A.  466. 

Art.  305. — The  clerk  of  the  court  which  granted  the  in- 
junction, shall  deUver  as  many  copies  of  the  petition  and  of 
the  injunction,  as  there  are  parties  against  whom  the  same  is 
directed,  and  the  mode  of  service  shall  be  the  same  as  in 
ordinary  suits. 

6  N.  S.  642,  10  R.  68. 

Art.  30G. — When  an  injunction  has  been  obtained  to  pre- 
vent one  from  disposing  of  a  thing  in  dispute,  or  a  husband 
from  selling  the  property  belonging  to  the  community,  or  his 
own  property  subject  to  the  privilege  of  his  wife,  such  injunc- 
tion must  be  served,  not  only  on  the  defendant,  but  also  on 
public  notaries,  or  other  public  officers  performing  notarial 
functions,  if  the  plaintiff  require  it. 

10  R.  68. 

Art.  307. — Whenever  the  act,  prohibited  by  the  injunc- 
tion, is  not  such  as  may  work  an  irreparable  injury  to  the 


152  OF    JUDGMENT    BY    DEFAULT. 

plaintiff,  the  court  mav,  in  their  discretion,  dissolve  the  same  ; 
provided  the  defendant  execute  his  obligation  in  favor  of  the 
plaintiff,  \vitli  the  surety  of  one  good  and  solvent  ]>erson  resid- 
ing witliin  the  jurisdiction  of  the  court,  fur  such  sum  as  the 
court  may  determine,  according  to  the  nature  of  the  case,  ag 
security  that  he  ^^^ll  deliver  the  property  in  dispute,  in  the 
same  state  in  which  it  was  at  the  moment  of  issuing  tlie  in- 
junction, and  that  he  will  pay  besides  to  the  plaintiff  all  dam- 
ages he  may  have  sustained  by  his  act,  if  a  definitive  judg- 
ment be  rendered  against  liim  in  the  suit  pending. 

lOR.  68;  2  A.  321. 

Art.  308. — If  one  against  whom  the  injunction  is  directed, 
violate  the  same  or  refuse  to  obey,  the  court  may  cither  cause 
to  be  destroyed  whatever  may  have  been  done  in  contravention 
to  the  injunction,  if  it  be  practicable,  or  they  may  punish  him 
by  an  imprisonment  not  exceeding  ten  days,  but  which  may 
be  repeatedly  inflicted,  until  the  party  obeys  the  mandate  of 
the  court.  The  party  aggiieved  by  the  disobedience  of  such 
person,  may  also  recover  from  him  such  damages  as  he  may 
show  that  he  has  sustained  from  such  disobedience. 

10  R.  G8. 

Art.  309. — The  sheriff,  whenever  he  receives  an  act  of 
suretyship  in  any  of  the  cases  mentioned  above,  must  imme- 
diately send  the  same  to  the  clerk  of  the-  court  which  gave  the 
mandate,  in  order  that  the  plaintiff  may  liave  an  opportunity 
of  objecting  to  the  sufficiency  of  the  security,  in  the  manner 
provided  for  in  case  of  the  surety  given  for  the  appearance  of 
debtors. 

6  N.  S.  4G;  10  R.  68. 


§  5.    Of  Judgment  by  Default. 

Art.  310. — If  the  defendant  do  not  appear,  either  in  per- 
son or  by  liis  advocate,  after  the  delay  provided  by  the  law,  the 
plaintiff  may  take  a  judgment  by  default  against  liim. 

6N.  S.  211,  417;  7  N.  S.  614;  8  N.  S.  119,284,802,339;  6  L.  C97  ;  7  L.  469  ; 
7  L.  501 ;  10  L.  223;  6  R.  9  ;  12  R.  41. 


OF  JUDGMENT  BY  DEFAULT.  163 

Art.  311. — Such  judgment  may  be  obtained  by  mo\ang 

for  it  in  court,  but  it   consists  merely  in  a  statement  on  the 

records  of  the  court,  showing  that  the  defendant  has  failed  to 

appear. 

,  6  R.  9. 

Art.  312. — If  three  days  after  this  first  judgment  has 
been  rendered,  the  defendant  neither  appear  nor  file  liis  answer, 
a  definitive  judgment  will  then  be  given  for  the  plaintiff, 
provided  he  prove  his  demand.  This  proof  is  required  in  all 
cases.  * 

Stat.  1853.  No.  300.  An  act  to  amend  article  three  hun- 
dred and  twelve  of  the  Code  of  Practice.  That  article  three 
hundred  and  twelve  of  the  Code  of  Practice,  which  is  as  fol- 
lows:— "If  three  days  after  tliis  fii'st  judgment  has  been 
rendered,  the  defendant  neither  ajppear  nor  file  his  answer, 
definitive  judgment  will  then  be  given  for  the  plaintiff",  pro- 
%dded  he  prove  his  demand.  This  proof  is  required  in  aU 
cases  ;"  be,  and  the  same  is  hereby  amended,  so  as  to  read  : 
— "  If  two  days  after  this  first  judgment  has  been  rendered, 
the  defendant  neither  appear  nor  file  liis  answer,  definitive 
judgment  will  then  be  given  for  the  plaintiff',  proAdded  hq 
prove  his  demand.     This  proof  is  required  in  all  cases." 

3  N.  S.  154  ;  6  N.  S.  211,  417 ;  7  F.  S.  6U;  8  N.  S.  119,  284,  301,  802  ;  3  L.  114  ; 
11  L.  88;  12  L.  133,  259,  618;  13  L.  395;  14  L.  97,  269,472;  15  L.  166,  298; 
16  L.  314;  17  L.  358;  1  R.  16,448;  3  R.  155;6  R.  9;  9R.  478;  12  R.  484,518; 
1  A.  117.  ^ 

Art.  313. — ^Vlien,  from  the  nature  of  the  demand,  dam- 
ages are  to  be  assessed,  the  court  wiU  direct  a  juiy  to  be  sum- 
moned to  find  the  same,  in  the  same  manner  as  if  the  defend- 
ant had  answered  ;  and  the  court  AviU  give  their  judgment  in 
conformity  with  the  verdict  of  the  jury. 

11  L.  168 ;  12  L.  618 ;  18  L.  474 ;  5  R.  141 ;  6  R.  273  ;  3  A.  69  ;  6  A.  521. 

Art.  314. — If  the  defendant,  on  the  very  day  when  a  de- 
finitive judgment  by  default  was  to  have  been  rendered  against 
him,  appear  and  file  his  answer,  the  first  judgment  taken,  shall 
be  set  aside. 

3L.  115;  10  L.  650;  1  R.  448;  10  R.  560;  6  A.  119. 


154  OF    THE    APPEARANCE    AND 

Art.  315. — A  jaJgmcut  Ly  default  must  express  the 
ground  on  which  it  was  rendered,  but  it  is  sufficient  to  state 
in  the  final  judgment,  that  the  demand  was  proved. 

3KS.  154;  12  L.  133;  10  L.  314;  13  L.  495;  1  R.  448;  3  11.  l§5;  17  L.  355 

9  R.  478. 


^    G.    Of  the  appeafojice  and  answer  of  the  defendant. 

Art.  316. — When  the  defendant  appears,  he  may  pray 
for  further  time  to  answer,  and  the  court  may  grant  a  delay, 
if  necessary  for  the  purposes  of  justice. 

8  N*.  S.  505,  514 ;  4  L.  5C4 ;  7  L.  393. 

Art,  317. — It  shaU  be  sufficient  in  all  cases,  except  in  the 
first  judicial  district,  for  a  defendant  to  file  liis  answer  on  the 
first  day  of  the  term. 

Art.  318. — In  the  delay  given  to  the  defendant  for  an- 
swering, Sunday  is  included  hke  other  days  ;  but  in  all  cases 
where  delay  is  given,  either  to  do  something  or  to  answer, 
neither  the  day  of  serving  the  notice,  nor  that  on  which  the 
act  is  to  be  done,  or  the  answer  filed,  are  included. 

The  exceptions  to  tliis  rule  are  specially  provided  by  law. 

10  L.  125,221;  12  R.  421. 

Art.  319. — The  answer  must  be  drawn  in  English,  and  in 
French  when  the  plaintiff  speaks  that  language  as  a  mother 
tongue  ;  it  must  express  the  name,  surname,  and  residence  of 
the  defendant,  as  well  as  the  name  of  the  plaintiff' ;  and  it 
must  be  free  from  all  abusive,  defamatory,"  or  imi3ertinent  ex- 
pressions. 

It  must  conclude  by  praying  that  the  demand  of  the  }jlain- 
tiff  be  rejected,  and  that  he  be  sentenced  to  pay  the  costs  of 
the  suit  ;  unless  the  defendant  himself  should  incidentally 
plead  compensation  or  some  other  exception. 

3  N.  8.- 270,  622,  645,  687  ;  4  N.  S.  492 ;  5  N.  S.  635  ;  7  N.  S.  284,  482,  520; 
8  N.  S.  295,  515,  558,  704 ;  1  L.  318  ;  2  L.  207  ;  3  L.  307,  392 ;  6  L.  405  ;  7  L.  85  ; 
8  L,  227;  9  L.  127,  159,  160,  413;  10  L.  106,  228,  550 ;  11  L.  83,76,  189; 
12  L.  9,  398;  13  L.  13;  15  L.  231  ;  17  L.  292,  419,  528. 


■  ANSWER  OF  THE  DEFENDANT.  155 

Art.  320. — The  defendant  may  refuse  to  answer  to  the 
merits,  if  he  has  good  ground  for  such  refusal ;  as  if  the  suit  is 
brought  by  one  pretending  to  act  as  the  attorney  in  fact  of  the 
plaintiff,  and  he  fail  to  annex  to  the  petition  a  copy  of  his 
power  of  attorney,  or  by  a  minor,  without  being  assisted  by 
his  curator,  or  by  a  married  woman,  mthout  the  authorization 
of  her  husband  or  of  the  com't. 

1  L.  283 ;  7  L.  595  ;  5  L.  405. 

Art.  321.  In  all  the  cases  mentioned  in  the  preceding  ar- 
ticles, and  in  all  other  cases  of  the  like  nature,  if  the  defend- 
ant take  any  such  exceptions,  and  the  same  be  sustained  by 
the  court,  he  shall  not  be  required  to  answer  to  the  merits, 
until  the  documents,  wliich  he  calls  for,  be  produced,  or  unti? 
the  plaintiff  be  assisted  in  such  a  manner  as  to  enable  them 
to  proceed  regularly. 

2  ]Sr.  S.  212;  4  L.  272;  10  L.  107. 

Art.  322. — The  defendant  need  not  plead  to  the  merits,  if 
he  decUne  the  jurisdiction  of  the  court  before  which  the  suit  is 
brought. 

4  N.  S.  678  ;  7  L.  393 ;  10  L.  228. 

Art.  323. — When  the  defendant  answers  to  the  merits,  he 
is  not  bound  to  answer  specially  to  all  the  allegations  contained 
in  the  petition  ;  it  is  sufficient  to  deny,  generally,  all  the  facts 
stated,  except  he  be  called  upon,  either  to  acknowledge  or  to 
deny  his  signaiure. 

6  N.  S.  220,  250 ;  7  N.  S.  520 ;  8  K  S.  167,  290 ;  6  L.  745  ;  10  L.  10(5 ;  8  L.  227  ; 

11  L.  34,  76. 

Art.  324. — When  the  demand  is  founded  on  an  obliga- 
tion, or  an  act  under  private  signature,  which  is  alleged  to 
have  been  signed  by  the  defendant,  such  defendant  shall  be 
bound  in  his  answer  to  acknowledge  expressly,  or  to  deny  his 
signature. 

1  L.  488 ;  3  L.  307  ;  5  L.  34;  1  A.  325. 

Art.  325. — If  the  defendant  deny  liis  signature  in  his  an- 
swer, or  contend  that  the  same  has  been  counterfeited,  the 


156      OF  THE  APPEARANCE  AND  ANSWER,  ETC. 

plaintiflF  must  prove  the  genuineness  of  such  signature,  either 
by  witnesses  who  have  seen  the  defendant  sign  the  act,  or  who 
declare  tliat  they  know  it  to  he  liis  siiz:nature,  because  they 
have  frequently  seen  him  write  and  sign  his  name." 

But  the  proof  by  witnesses  shall  not  exclude  the  proof  by 
experts,  or  by  a  comparison  of  the  ^vriting,  as  established  by 
the  Cinl  Code. 

9  L.  409,  502 ;  1  A.  325  ;  3  A.  323 ;  4  A.  52. 

Art.  326. — The  defendant,  whose  signature  shall  have 
been  proven,  after  his  having  denied  tlie  same  shall  be  baiTcd 
from  every  other  defence,  and  judgment  shall  be  given  against 
him,  without  further  proceedings. 

8  N.  S.  230,  299 ;  2  L.  240 ;  8  L.  226 ;  12  K  12 ;  1  A.  325. 

Art.  327. — The  defendant,  though  not  bound  to  answer 
specially  to  all  the  allegations  of  the  plaintift',  except  when 
called  upon  to  avow  or  to  deny  his  signature,  must,  neverthe- 
less, if  he  intend  to  resist  the  action  by  means  of  some  excep- 
tion, plead  the  same  expressly  and  positively  in  his  answer, 
in  all  the  cases  hereafter  prescribed  ;  otherwise  he  shall  not  be 
permitted  to  avail  liimself  of  such  exceptions  afterwards. 

7  L.  595 ;  4  R.  172  ;  9  R.  618  ;  2  A.  129. 

Art.  328. — The  defendant,  in  his  answer,  may  allege  facts 
different  from  those  alleged  by  the  plaintiff,  and  bring  an  in- 
cidental demand,  when  the  same  grows  out  of  the  action,  or  is 
specially  permitted  by  law.  . 

2  A.  4C2. 

Art.  329. — When  the  defendant,  in  his  answer,  alleges, 
on  his  part,  new  facts,  these  shall  be  considered  as  denied  by 
the  plaintiff,  therefore,  neither  replication  nor  rejoinder  shall 
be  admitted. 

6  N.  S.  oil ;  8  N.  S.  141 ;  3  L.  392 ;  4  L,  836 ;  5  L.  4 ;  12  R.  C48. 


OF  EXCEPTIONS  AND  DEFENCE.  157 


Sec.  VII. — Of  Exceptions^  and  Defence. 

Art.  330. — Exceptions  are  means  of  defence,  used  by  the 
defendant,  to  retard,  prevent,  or  defeat  the  demand  brought 
against  him. 

But  the  word  defence,  in  its  more  restricted  acceptation,  ia 
only  apphcd  to  such  exceptions  as  go  to  the  merits,  showing 
that  the  action  is  neither  just  nor  well  founded. 

Art.  331. — There  are  two  principal  species  of  exceptions, 
some  arc  dilatory,  others  peremptory. 

Dilatory  exceptions  are  divided  into  decUnatory  and  dila- 
tory exceptions. 

4  N.  S.  287,  435,  470,  482,  487 ;  5  N.  S.  232,  343 ;  6  N.  S.  10;  7  N.  S.  284,  361 ; 
8  N.  S.  409,  439 ;  1  L.  420  ;  2  L.  203  ;  3  L.  236,  308,  461 ;  4  L.  91,  104,  157,  360, 
482  ;  10  L.  550 ;  12  L.  617  ;  13  L.  11,  109 ;  14  L.  22*8 ;  17  L.  480 ;  19  L.  430  ; 
2  R.  381 ;  3  R.  202 ;  9  R.  535  ;  3  R.  93,  108. 


§1.0/"  Dilatory  Exccpticnis. 

Art.  332. — Dilatoiy  exceptions,  are  such  as  do  not  tend  to 
defeat  the  action,  but  only  to  retard  its  progress  ;  declinatoiy 
excejjtions  have  this  effect,  as  weU  as  the  exception  of  discus- 
sion opposed  by  a  third  possessor,  or  by  a  surety,  in  an  hy- 
pothccaiy  action,  or  the  exception  taken,  in  order  to  call  in 
the  warrantor. 

^  3  L.  308;  3  R.  57;  5  R.  268. 

Art.  333. — It  is  a  i-ule,  which  governs,  in  aU  cases  of  ex- 
ceptions, except  in  such  as  relate  to  the  absolute  incompetency 
of  the  judge  before  whom  the  suit  is  brought,  that  they  must 
be  pleaded  specially  a  limine  litis,  before  issue  joined  ;  other- 
wise they  shall  not  be  admitted. 

Stat.  20th  March,  1839,  p.  172.— §  23.  Hereafter  no 
dilatory  exceptions  shall  be  allowed  in  any  case  after  a  judg- 
ment by  default  has  been  taken  ;  and  in  every  case  must  be 


158  OF  DECLINATORY  EXCEPTIONS. 

pleaded  in  limine  litis  ;  nor  shall  such  exceptions  hereaftei  be 
admitted  in  any  answer  in  any  cause. 

1  N.  S.  130,  507,  703;  4  >.  S.  437  ;  1  L.  283,  419;  6  K  63 ;  7  L.  599; 
8  L.  689  ;  10  L.  650  ;  14  L.  188 ;  3  R.  67  ;  5  R.  268 


§  2.  0/  Declinator ij  Exceptions. 

Art.  334. — Declinatory  exceptions,  do  not  tend  to  defeat 
the  demand,  but  only  to  decline  the  jmisdiction  of  the  judge 
before  whom  it  is  brought. 

In  such  cases,  the  defendant  contends  that  he  is  not  bound 
to  plead  before  the  court  in  which  the  action  has  been 
brought. 

12  L.  118. 

Art.  335. — There  arc  two  kinds  of  decHnatoiy  excep- 
tions : 

1.  When  the  exception  is  taken  to  the  competency  of  the 
judge,  pursuant  to  the  rules  above  provided  ; 

2.  When  it  arises  from  the  fact  of  another  suit  being  pend- 
ing, between  the  same  parties,  for  the  same  object,  and  grow- 
ing out  of  the  same  cause  of  action,  before  another  court  of 
concurrent  jurisdiction. 

In  both  cases  the  suit  must  be  dismissed,  and  the  plaintiff 
decreed  to  pay  costs. 

3N.S.  363;  V'n.  S.  187;  7  L.  197;  9  L.  380  ;  11  L.  33;  3  R.  92,  108 
12  R.  635;  2  A.  839  ;  4  A.  520 ;  5L.  116;  17  L.498;  1  A.  46  ;  5  A.  494 
6  N.  S.  517;  4L.158;  5  L.  425  ;  17  L.  479;  13  L.  373;  11  K.  402  ;  3  A.  22^ 
4  A.  860;  12  R.  635  ;  2  A.  839. 

Art.  336. — Declinatory  exceptions  may  be  pleaded  in  the 
defendant's  answer,  .previous  to  his  answering  to  the  merits ; 
but  except  as  relates  to  dechnatory  exceptions,  the  defendant 
must  plead  in  his  answer  aU  the  dilatory  or  peremptory  excep- 
tions, on  which  he  intends  to  rely,  or  which  he  is  bound  to 
plead  expressly  and  specially,  pursuant  to  the  provisions  of 
this  code. 

12  M.  636  ;  4  N.S.  437  ;  6  L.  380  ;  7  L.  197  ;  C  R.  419. 


OF  THE  RECUSATION  OF  JUDGES.  159 

§  3.    Of  the  recusation  of  Judges. 

Art.  337. — Recusation  is  the  refusal,  on  tlic  2)art  of  the 
defenilarit,  to  have  liis  cause  tried  by  the  judge  before  whom 
he  has  been  sued,  on  account  of  the  ties  of  relationship,  exist- 
ing between  such  judge  and  the  plaintiff,  or  for  other  just 
causes  hereafter  expressed. 

12  L;  118;  4R.  23;  2  A.  628. 

Art.  338. — The  causes  for  which  a  judge  may  be  recused 
are : 

1.  His  being  interested  in  the  cause  ; 

2.  His  being  in  any  way  related  to  one  of  the  parties  ; 

3.  His  having  been  emj)loyed,  or  consulted  as  advocate  ia 
the  cause  ; 

4.  His  being  a  material  witness  in  the  cause  for  either 
party. 

Stat.  Wi  Januarij^  1825,  p.  24. — In  all  ci\il  and  criminal 
causes  in  which  the  State,  the  j^arishes,  or  the  politic  or  reli- 
gious incoqiorations,  except  the  banks,  and  other  moneyed  insti- 
tutions are  interested,  it  shall  not  be  a  sufficient  cause  to 
challenge  the  judge  or  justice  of  the  peace,  who  have  cogni- 
zance of  the  case,  nor  the  sheriff  or  other  executive  officer  or 
any  of  the  jurors  who  are  called  to  serve  in  the  cause,  to  al- 
lege that  they  are  citizens  or  inhabitants  of  the  State  or  of 
the  said  parishes,  or  members  of  the  said  politic  or  religious 
incorporations,  or  that  they  pay  any  State  parish  or  city  tax. 

Stat.  18th  Fehruary,  1825,  p.  138.— §  1.  It  shall  not  be 
deemed  a  sufficient  cause  of  recusation  against  any  judge  of 
the  Supreme  Court  of  this  State  that  he  has  been  emjiloyed  as 
counsel  or  attorney  in  the  case,  but  the  said  judge  or  judges 
may,  notwithstanding  they  may  have  been  employed  or  con- 
sulted as  an.  attorney  or  counsellor,  in  any  cause,  proceed  to 
the  trial  of  the  same,  any  laAV  to  the  contrary  not^vithstanding. 

§  2.  Whenever  a  quorum  of  the  judges  of  the  Sujireme 
Court,  shall  recuse  themselves,  from  any  cause  whatever,  the 


160  OF    THE    RECUSATION    OF   JUDGES, 

judgment  given  by  the  court  below,  shall  be  pro\isionally  ex- 
ecuted by  giving  good  and  sufficient  security  in  double  the 
amount  of  the  judgment  therein  given. 

Stat.  25th  March,  1828,  p.  152.— §  5.  That  the  fourth 
paragraph  of  the  three  hmidred  and  thirty-eighth  article  of 
the  Code  of  Practice,  be,  and  is,  hereby,  repealed  ;  and  that 
no  judge  shall  be  rendered  incompetent  to  sit.  on  the  trial  of 
any  case  now  pending,  or  which  may  hereafter  be  instituted 
in  any  of  the  courts  of  this  State,  in  consequence  of  his  being 
a  material  witness  in  the  case,  in  fovor  of  either  pfirty,  and 
that  his  being  a  w^itness  shall  no  longer  be  a  cause  of  recusa- 
tion of  said  judge. 

§  6.  In  every  case  now  pending,  or  which  may  hereafter  be 
instituted  in  any  of  the  courts  of  this  State,  wliich  are,  by 
law,  provided  with  clerks,  in  which  the  judge  of  said  court 
may  be  a  rnaterial  witness,  the  clerk  of  said  court  shall  ad- 
minister the  oath  to  said  judge,  and  shall  take  down  his  Qvi- 
dence  in  wTiting,  if  reqimed  by  either  party  in  the  cause ;  and 
in  such  courts  as  may  not  be  provided  with  clerks,  it  shall  be 
lawful  for  any  person  authorized  by  law  to  administer  oaths, 
'to  administer  the  oath  to,  and  take  down  the  evidence  of  the 
said  judge  in  writing,  and  the  said  clerk,  or  other  officer  shall 
certify  and  sign  said  evidence,-  and  the  same  shall  be  filed  and 
used  as  eWdence  in  the  cause  :  Provided,  however,  that  the 
above  formalities  may  be  dispensed  with,  by  consent  of  parties, 
in  all  cases,  and  the  evidence  of  said  judge  taken  in  any  o^her 
manner  and  form  that  may  be  agreed  upon  by  the  parties. 

Stat.  1st  June,  1846,  p.  113.— Whenever  the  judge  of  any 
court  in  this  State  is  interested,  or  has  acted  as  counsel  or  at- 
torney in  any  cases  instituted,  or  wliich  may  be  instituted,  in 
the  courts  of  the  district  for  wliich  such  judge  may  have  been 
appointed,  or  is  related  to  either  of  the  parties  so  as  to  be  in- 
capable of  trying  such  cases  by  the  existing  la^YS,  or  is  dis- 
qualified in  any  other  way  by  law,  and  is  recused  by  either  of 
the  parties,  or  recuses  himself,  it  shall  be  the  duty  of  the  said 
judge  to  refer  the  said  case  or  cases  to  the  judge  of  an  adjoin- 


OF    THE    RECUSATION    OF    JUDGES.  161 

ing  district  ;  that  thereupon '  it  shall  be  the  duty  of  the  clerk 
of  the  court  to  notify  the  judge  of  the  adjoining  district,  that 
such  case  or  cases,  have  been  referred  to  him  for  trial,  and  it 
shall  be  the  duty  of  the  judge  to  whom  such  case  or  cases 
shall  have  been  referred,  to  repair  to  the  parish  where  such 
case  or  cases  are  pending,  and  to  hold  a  special  court  for  the 
trial  of  the  same,  and  it  shall  be  the  duty  of  said  judge  to  or- 
der a  special  jury  to  be  drawn  for  the  trial  of  such  case  or 
cases,  if  necessary  ;  provided  this  act  shall  not  apply  to  the 
parish  of  Orleans. 

No.  229.  Stat  28th  April,  1853.  A71  act  to  organize  Dis- 
trict Courts  for  the  City  and  Parish  of  New  Orleans.  §  4. 
Whenever  the  judge  of  any  of  the  courts  created  by  this  act, 
shall  be  interested  in  any  cause  brought  in  the  court  over 
which  he  presides,  or  shall  be  related  within  the  fourth  degree 
to  either  of  the  parties,  or  shall  recuse  himself  for  any  of  the 
causes  provided  by  law,  or  shall  otherwise  be  incapable  of,  or 
disquahfied  from  trying  such  cases,  it  shall  be  the  duty  of  one 
of  the  judges  of  one  of  the  other  district  courts  to  preside  in 
the  interim  in  the  place  of  said  judge,  to  proceed  in  such  case 
as  if  it  had  been  brought  before  him,  and  ta  discharge  each 
and  all  the  duties  which  the  judge  of  said  court  would  have  to 
discharge,  if  present. 

No.  249.  Stat.  28th  April,  1853.— §  1.  Whenever  the  judge 
of  any  inferior  court  in  tliis  State,  the  parish  of  Orleans  except- 
ed, is  interested  or  has  acted  as  attorney  or  counsel  in  any 
cases  instituted,  or  which  may  be  instituted  in  such  court,  or 
is  related  to  either  of  the  parties  by  consanguinity  in  the  di- 
rect ascending  or  descending  line,  or  collaterally  to  the  fourth 
degree,  inclusive,  or  is  disqualified  in  any  other  way,  by  law, 
and  is  recused  by  either  of  the  parties,  or  recuses  himself,  such 
case  or  cases  shall  be  heard,  tried  and  determined,  as  well  up- 
on final  hearing  as  upon  application  for  interlocutory  orders,  in 
the  following  manner,  to  wit :  The  parties,  by  their  counsel, 
shall  select  some  member  of  the  bar  in  attendance  on  the 
court ;  and  in  the  event  they  do  not  make  such  selection,  then 
11 


162  OF  THE  RECUSATION  OF  JUDGES. 

it  shall  1)0  the  duty  of  the  court  to  designate  at  least  three 
members  of  the  bar,  in  attendance  as  aforesaid,  not  of  counsel 
interested  or  related  to  the  parties  in  the  manner  above  set 
forth,  and  from  that  number  one  shall  be  chosen  by  lot  ;  when 
such  selection,  in  either  of  the  two  ways  aforesaid,  shall  bo 
made,  it  shall  be  the  duty  of  the  judge  to  retire  for  the  time 
from  the  bench,  and  the  said  member  of  the  bar,  so  selected, 
shall  take  his  place,  and  hear  and  try  and  determine  the  cause 
or  causes  for  which  he  shall  have  been  so  selected. 

§  2.  In  all  cases  and  every  cause  tried,  heard  and  determin- 
ed, according  to  the  pro^dsions  of  the  foregoing  section,  it  shall 
be  the  duty  of  the  judge  to  enter  the  proceedings  in  the  court, 
by  ^^rtue  of  this  act,  as  if  the  same  were  had  before  him,  and 
it  shall  be  his  duty  to  sign  all,  every  and  any  judgment  or 
judgments,  decree  or  decrees  to  be  rendered  in  the  cause  or 
causes,  as  the  same  would  have  been  signed  had  the  judgment 
or  decree  been  rendered  by  him,  when  presiding  in  court,  and 
in  every  other  respect  the  records,  minutes  and  proceedings 
shall  be  and  appear  as  if  the  selection  provided  for  by  this 
act  had  not  been  made,  and  appeals  from  any  decree^  or  judg- 
ment thus  rendered,  shall  be  granted  and  allowed  by  the 
judge,  as  by  law  now  jirovided  in  other  causes. 

§  3.  The  member  of  the  bar  thus  selected,  according  to 
the  j)rovisions  of  this  act,  shall,  during  the  time  occupied  in 
the  trial  of  causes  by  virtue  of  this  act,  have  the  same  power 
to  preserve  order  in  court  and  punish  for  contempt,  as  is  vest- 
ed by  law  in  the  judges  of  the  several  courts. 

§  4.  The  attorney  thus  appointed  to  sit  on  the  trial  of  the 
cause,  shall  take  the  oath  prescribed  by  the  constitution  be- 
fore taking  the  bench. 

§  5.  All  acts  or  part  of  acts  not  in  accordance  A^dth  the 
above  and  foregoing  provisions,  be,  and  the  same  are  hereby, 
repealed. 

§  6.  This  act  shall  take  effect  from  and  after  the  third 
Monday  of  June,  eighteen  hundred  and  fifty-three. 

2  L.  345,  889  ;  2  A.  46, 


OF    PEREMPTORY    EXCEPTIONS,  163 

Art.  339. — Affinity  is  not  a  good  canse  of  recusation,  ex- 
cept when  the  judge  is  the  father-in-law,  son-in-law  or  broth- 
er-in-law of  one  of  the  parties. 

Art.  340. — The  judge  may  recuse  liimsclf,  but  only  in 
such  caKSCs,  where  the  parties  themselves  would  have  the  right 
of  recusing  him. 

Art.  341. — The  decision  of  cases  where  the  judge  is  recus- 
ed, is  provided  for  by  special  laws. 

Art.  342. — When  there  are,  in  the  same  parish,  two 
courts  of  concurrent  jurisdiction,  and  the  judge  of  one  of  these 
is  recused,  such  judge  shall  order  the  cause  to  be  removed  to 
the  other  court,  to  be  there  tried  and  decided. 

6  L.  35. 


§  4.  (y  Peremptory  Exceptions. 

Art.  343. — Peremptory  exceptions,  are  those  which  tend 
to  the  dismissal  of  the  action. 

Some  relate  to  forms,  others  arise  from  the  law. 

8  K  S.  410,  453 ;  7  L.  204,  413,  457  ;  10  L.  169. 

Art.  344. — Peremptory  exceptions  relating  to  forms,  are 
those  which  tend  to  have  the  cause  dismissed,  owing  to  some 
nullities  in  the  proceedings. 

Such  exceptions  must  be  pleaded  in  limine  litis,  that  is  to 
say,  at  the  beginning  of  the  suit,  and  before  answering  to  the 
merits. 

After  the  defendant  has  pleaded  to  the  merits,  such  excep- 
tions shall  not  be  heard  ;  all  nullities  are  cured. 

4  11.  172;  11  R.  87;  1  A.  372. 

Art.  345. — Pcremptoiy  exceptions,  founded  on  law,  are 
those  which,  without  going  into  the  merits  of  the  cause,  show 
that  the  plaintiff  cannot  maintain  his  action,  either  because  it 
Is  prescribed,  or  because  the  cause  of  action  has  been  destroyed 
or  extinguished. 

6L.467;  3R.  357;  6R.  419;  9R.  518;  llR.  87.' 


164        OF    INTERROGATORIES   ON    FACTS    AND    ARTICLES. 

Art.  346. — Peremptory  exceptions,  founded  on  law,  niay 
bo  i^leaded  in  every  stage  of  the  action,  previous  to  the  defini- 
tive judgment ;  but  they  must  be  pleaded  specially,  and  suffi- 
cient time  allowed  to  the  adverse  party  to  bring  his  evidence. 

4N.  S.  487;   1  L.  318;  2  L  121;  4  L.  432;  6  L.  94 ;  8  L.  162;  14  L.  422; 
19  L.  262;  3  R.  357;  6  R.  419. 


Sec.  VIII. — Of  interrogatories  on  facts  and  articles. 

Art.  347. — Both  plaintifi'  and  defendant  are  permitted  to 
annex,  either  to  their  petition  or  their  answer,  interrogatories 
on  facts  and  articles. 

Stat.  3df  May,  1847,  p.  146. — From  and  after  the  passage 
of  this  act  no  court  shall  make  an  order  requiring  a  female  to 
answer  interrogatories  on  facts  and  articles,  in  open  court,  un- 
less the  party  propounding  them,  or  his  or  her  agent  or  attor- 
ney, shall  make  oath  to  the  materiality  of  the  interrogatories, 
and  that  they  are  not  proj^ounded  for  the  purpose  or  in  the 
hope  of  having  them  taken  for  confessed,  but  with  the  hona 
fide  desire  to  have  them  ti'uly  answered  by  the  party  interro- 
gated. 

1  L.  19G;  1  R.  299;  3  A.  272. 

Art.  348. — Interrogatories  on  facts  and  articles,  are  ques- 
tions put  in  writing,  in  the  form  of  articles,  and  annexed  to  a 
petition  or  to  an  answer,  to  wliich  one  of  the  parties  to  the 
suit  prays  that  the  other  be  ordered  to  respond,  under  oath, 
in  order  to  make  use  of  his  answers  as  testimony  in  sup^jort  of 
his  demand,  or  to  aid  him  in  liis  defence. 

1  R.  299;  3  R.  243 ;  9  R.  19 ;  7  K  S.  259  ;  3  L.  241 ;  4  L.  611 ;  7  L.  523 ; 

11  L.  276. 

Art.  349. — The  party  interrogated  on  facts  and  articles,  is 
bound  to  answer  on  oath  and  categorically,  each  of  the  ques- 
tions put  to  him,  unless  he  cannot  do  so  without  confessing 
himself  guilty  of  some  crime. 

Except  in  t?ie  above  case,  if  the  party  interrogated  refuse 


OF    INTERROGATORIES    ON    FACTS    AND    ARTICLES.         165 

or  neglect  to  answer  on  oath  to  all  the  questions  put  to  him, 
the  facts  concerning  which  he  shall  have  so  refused  or  neglect- 
ed to  answer,  shall  he  taken  for  confessed. 

1  N.  S.  194;  5  N.  S.  G49;  1  N.  S.  529;  8  N.  S.  301 ;  2  L.  .315;  4  L.  159;  1  L. 
623 ;  10  L.  551 ;  5  R.  489 ;  9  R.  125. 

Art.  350. — To  enable  the  defendant  to  obtain  the  answer 
of  the  plaintiff  to  interrogatories,  he  shall  subjoin  to  the  in- 
terrogatories proposed  to  be  answered,  his  affidavit  of  their 
materiality,  and  that  in  his  opinion  the  answer  of  the  plaintifi' 
would  assist  him  in  making  his  defence,  but  the  party  interro- 
gated may  object  in  writing  to  any  of  the  questions  as  not  per- 
tinent, and  the  judge  shall  decide  summarily  whether  he 
ought  to  answer  or  not  ;  if  ordered  to  answer,  he  must  do  it, 
otherwise  the  facts  unanswered  will  be  deemed  confessed. 

7  N.  S.  269;  9  R.  125;  2  A.  938. 

Art.  351. — The  party  propounding  the  interrogatories 
may  require  the  party  interrogated  to  answer  in  open  court, 
and  in  his  presence,  on  the  day  appointed  to  that  effect  by  the 
judge,  if  the  party  interrogated  reside  in  the  parish  where  the 
court  holds  its  sittings. 

See  amendment  to  art.  347  ;  2  L.  73 ;  7  L.  335 ;  10  L.  417,  551 ;  5  R.  491 ; 
6  R.  354  ;  9  R.  125  ;  12  R.  445  ;  2  A.  11,  845. 

\  Art.  352. — If  the  party  reside  out  of  the  parish  where  the 
court  sits,  but  within  the  State,  a  commission  shall  be  directed 
to  any-jiidge  or  justice  of  the  peace  in  the  parish  where  said 
party  rcsid^s^  whose  duty  it  shall  be  to  receive  his  answers  to 
the  interrogatories  propounded  to  him,  after  giving  to  the  op- 
posite party  a  written  notice  in  due  time,  in  order  that  said 
party  may  be  present  thereto,  or  have  himself  represented,  if 
he  thinks  proper. 

Stat.  10th  February,  1843,  p.  14.— That  the  article  three 
hundred  and  fifty-second  of  the  Code  of  Practice  be  and  the 
same  is  hereby  repealed,  and  that,  in  lieu  thereof,  the  follow- 
ing article  be  substituted  : — "  In  all  cases  where  a  party  in- 
terrogated resides  out  of  the  parish  where  the  suit  is  pending, 
and  whether  within  or  without  the  State,  it  shall  be  liis  duty 


166         OF   INTERROGATORIES   ON    FACTS    AND    ARTICLES. 

to  file  his  answer  to  the  interrogatories  propounded  to  him 
within  such  period  as  shall  be  fixed  by  the  court,  on  the  motion 
of  the  party  interrogating,  and  notice  of  which  order,  fixing 
the  delay,  together  with  a  copy  of  the  interrogatories  pro- 
pounded, shall  be  served  on  the  attorney  representing  the 
party  interrogated.  Provided,  that  when  the  party  interro- 
gated resides  out  of  the  State,  his  answers  shall  be  taken  by 
commission." 

6  R.  354;  9  R.  125. 

Art.  353. — In  answering  a  question,  the  party  must  simply 
confess,  or  deny  the  fact. 

Nevertheless,  the  party  interrogated  may  state  some  other 
facts  tending  to  his  defence  ;  provided  they  be  closely  hnked 
to  the  fact  on  which  he  has  been  questioned,  and  an  appeal 
made  to  his  conscience.  His  declaration,  in  such  a  case,  shaD 
Ij^ave  as  much  effect  as  his  answer  to  the  question  itself, 

4  N.  S.  303  ;  1  L.  194  ;  2  L.  537  ;  10  L.  371 ;  11  L.  356  ;  6  R.  1  •  9  R.  173  , 
1  A.  247  :  2  A.  908  ;  3  A.  648  ;  6  A.  204  ;  2  N.  S.  148  ;  3  N.  S.  110  ;  5  N.  S.  650 ; 
6  K  S.  569. 

Art.  354. — The  answers  of  the  party  inteiTogated  are  evi- 
dence, but  do  not  exclude  adverse  testimony,  and  may  be  de- 
stroyed by  the  oath  of  two  witnesses,  or  of  one  single  witness, 
corroborated  by  strong  circumstantial  evidence,  or  by  written 
proof. 

9  M.  1  ;  1  N.  S.  648  ;  2  L.  538  ;  3  L.  119  ;  11  L.  18,  356  ;  9  R.  125- 

Art.  355. — The  jDarty  who  sues  for  the  recovery  of  a  debt, 
or  the  execution  of  an  obhgation  arising  from  a  written  act, 
may  be  interrogated  on  the  reality,  or  simulation  of  the  act. 

13  L.  73;  9R.  125. 

Art.  356.' — The  party  wishing  to  avail  himself  of  the  con- 
fessions made  by  the  adverse  party  in  his  answer  to  an  inter- 
rogatory on  facts  and  articlel;'*«i^st  not  divide  them  :  they 
must  be  taken  entire.. 


1  N.  S.  383  ;  2  N.  S.  55  ;>N.  i?  58,  116  ;  4  N.  S.  305  ;  5  N.  S.  39,  178  ;  6  N.  a 
259,569,706;  2  I#i52 ;  3  L.  119,124,241;  5  L.  66;  6  L.  344;  7  L.  523 
8  L.  142  ;41  L;  276,  418  ;  14  L.  67,  186,  298  ;  1 5  L.  121,  365  ;  16  L.  284 ;  1  R.  12, 
83.'7^2,  123,  179,  300,  311 ;  3  R.  126,  244;  4  R.  144 ;  9  R.  125. 


OF    ISSUE   JOINED.  167 

Sec.  IX.— 0/  issue  Joined,  (contestatio  litis). 

Art.  357.— The  cause  is  at  issue,  when  the  defendant  has 
answered,  either  by  confessing  or  by  denying  the  facts  set  forth 
m  the  petition,  or  by  pleading  such  dilatory,  or  peremptory 
exceptions,  as  he  is  bound  to  plead  in  limine  litis,  pursuant  to 
the  provisions  of  this  code. 

5  N.  S.  38  ;  8  N.  S.  339. 

Art.  358.— When  the  defendant  pleads  some  declinatory 
exception,  without  answering  to  the  merits,  there  is  no  issue 
joined. 

Art.  359.— The  joining  of  issue  is  iti  fact  the  foundation 
of  the  suit,  as  citation  is  that  of  the  action  ;  it  is  only  after 
this  is  done,  that  the  suit  begins  ;  the  parties  are  then  in  a 
situation  to  discover  what  e^ddence  is  necessary  in  suj^port  of 
their  respective  claims. 

5  N.  S.  42Y  ;  6  K  S.  469  ;  Y  K  S.  285  ;  4  R.  1. 

Art.  360.— When  the  defendant  suffers  judgment  by  de- 
fault to  be  taken  against  him,  the  issue  is  joined  tacitly  ;  be- 
cause such  defendant  is  presumed,  by  his  sUence,  to  have'con- 
fessed  the  justice  of  liis  adversary's  demand  ;  therefore,  the 
plaintiif  is  allowed  to  proceed  with  his  proofs,  in  order  to  havo 
the  judgment  confirmed. 

-ZL.  IVS;  nL.82;  12  R.  518;  1  A.  117. 

Art.  361.— If,  after  issue  joined,  either  the  plaintiff  or 
defendant  die,  it  is  not  necessary  to  recommence  the  action  ; 
it  continues  between  the  survi\dng  party  and  the  heirs  of  the 
one  deceased,  pursuant  to  the  provisions  enacted  in  the  first 
part  of  this  code. 

5  K  S.  42T  ;  3  L  442  ;  11  L.  360  ;  6  R.  44 ;  3  A.  547. 


168  OF    DEMANDS   IN    COMPENSATION,    OR    SETT    OFF 


CHAPTER   II. 

Of  the  incidental  demands  ivhich  may  be  made  pending  the 

action. 

Art.  362. — The  defendant,  besides  the  exceptions  wliich 
he  can  oppose  to  the  action  brought  against  him,  may,  on  his 
part,  institute  demands  incidental  to  the  suit,  either  against 
the  plaintiff,  or  against  third  persons,  not  parties  to  the 
cause. 

Art.  363. — The  incidental  demands  which  the  defendant 
may  bring,  are  demands, 

In  compensation ; 

In  reconvention  ; 

In  warranty. 

Art.  364. — Third  persons,  not  originally  parties  to  the  suit, 
may  intervene  in  the  same,  and,  like  the  defendant,  institute 
demands  incidental  to  the  main  action,  either  before  judg- 
ment, or  on  exception  ;  and  these  demands  are  called  the  in- 
tervention and  opposition  of  third  persons. 

11  R.  314. 

Art.  365. — The  incidental  demands  must  be  made  in 
writing  in  the  same  manner  that  the  principal  demand  is 
made. 

Sec.  I. — 0/  demands  in  compensation,  or  set-off. 

Art.  366. — Compensation,  or  set-off,  is  a  mode  of  ex- 
tinguishing debts,  which  takes  place  when  it  happens  that  both 
plaintiff  and  defendant  are  indebted  to  each  other  ;  each  re- 
taining, in  payment  of  the  sum  due  to  him,  the  amount  which 
be  owes  to  the  other. 

11  L.  216  ;  13  L.  25Y  ;  4  A.  140 ;  See  8  R.  22 ;  9  R.  1G5  ;  3  A.  124. 

Art.  367. — The  defendant  may  jAead  compensation,  or  sett 


OF    DEMANDS    IN    COMPENSATION,    OE    SETT    OFF.  169 

off,  at  every  stage  of  the  proceedings,  provided  it  be  pleaded 
specially. 

8  N.  S.  665  ;  15  L.  369  ;  13  L.  257  ;  \1  L.  371  ;  19  L.  542  ;  3  R.  258  ;  6  R.  86  ; 
11  R.  346;  2  A.  79,932,  938;  3  A.  617;  4  A.  140. 

Art.  368. — Compensation  may  be  pleaded,  either  in  the 
answer  to  the  prhicipal  demand,  or  it  may  be  claimed  by  a 
distinct  and  separate  demand. 

9L.  Ill;  4  A.  140,  157. 

Art.  369. — When  the  debt,  which  the  defendant  offers  in 
compensation  of  that  which  the  plaintiff  claims,  is  of  a  less 
amount  than  the  one  demanded,  compensation  only  takes 
place  for  that  amount,  and  judgment  must  be  given  in  favor 
of  the  plaintiff  for  the  suri)lus  ;  the  defendant  must  pay  the 
costs,  unless  he  shows  that  he  has  made  a  real  tender  of  such 
overplus,  at  the  time  and  in  the  manner  provided  by  law. 

10  L.  402. 

Art.  3V0. — If,  on  the  contrary,  the  two  debts,  as  to  cap- 
ital and  interest,  be  equal,  the  judgment  shall  free  both  from 
their  respective  obligations,  and  direct  the  costs  incurred 
prior  to  the  pleading  of  compensation,  to  be  paid  by  the  de- 
fendant, and  those  incurred  subsequently,  to  be  borne  by  the 
plaintiff. 

Art.  371. — But,  if  the  debt  which  the  defendant  sets  off 
in  compensation,  exceed  in  amount  that  which  the  plaintiff 
claims,  he  may  pray  in  his  answer,  that  the  judgment  be  given 
in  his  favor  for  the  balance  ;  and  if  the  compensation  be  just 
and  equitable,  the  judgment  shall  be  so  rendered. 

Art.  372. — When  the  defendant  opposes  compensation, 
not  in  liis  answer,  but  by  instituting  a  separate  demand  be- 
fore the  same  court  in  which  the  suit  is  pending,  the  plaintiff 
shall  be  bound  to  answer  in  the  cause,  although  he  may  have 
his  domicil  out  of  the  jurisdiction  of  such  court  ;  provided  the 
compensation,  so  opposed,  be  not  of  such  nature,  or  amount, 
as  to  render  such  court  incompetent. 

Art.  373. — If  the  defendant  suffer  judgment  in  the  origi- 


170  OF    DEMANDS    IN    RECONVENTION. 

nal  suit,  without  pleading  such  compensation  as  he  may  have 
to  oppose,  as  provided  above,  he  shall  not,  on  that  account, 
lose  his  right  of  action  against  the  plaintiff  to  recover  what- 
ever amount  such  plaintift'  owes  to  him  ;  hut  he  must  bring 
his  action  before  the  court,  within  whose  jurisdiction  the  plain- 
tiff has  his  domicil. 

8  R.  22. 


Sec.  II. — Of  demands  in  reconvention. 

Art.  374. — The  demand,  which  the  defendant  institutes, 
in  consequence  of  that  which  the  plaintiff  has  brought  against 
him,  is  termed  a  demand  in  reconvention. 

2  N.  S.  73,84,  196;  3  N.  S.  354,  364;  4  N.  S.  441;  5  N.  S.  18;  6  N.  S, 
611,  671;  7  N.S.  151,  289,  517  ;  8  N.  S.  149,  707  ;  1  L.  266;  2  L.  285;  3  L.  100,548 
4L.  132;  5  L.  540;  6L.  75;  7  L.  564 ;  9L.,20;  10  L.  185,  334,402;  11  L.  252,  309 
12  L  506;  13  L.  65;  14  L.  385;  15  L.  25,  378;  17  L.  176,  371;  2  R.  209,  216,  222 
3  R.  364,387;  4  R.  1,  96;  9  R.  90,418;  10  R.  119;  11  R  347;  12  R.  423,  646 
3  A.  617  ;  4  A.  381,  136  ;  5  A.  3,  150, 179,  250,  303. 

Art.  375. — In  order  to  entitle  the  defendant  to  institute 
a  demand  in  reconvention,  it  is  requisite  that  such  demand, 
though  different  from  the  main  action,  be,  nevertheless,  neces- 
sarily connected  with,  and  incidental  to  the  same  ;  as,  for  in- 
stance, the  demand  instituted  by  the  possessor  in  good  faith 
against  him  who  sues  in  order  to  evict  him,  or  for  the  pur- 
pose of  obtaining  the  payment  of  the  improvements  made  on 
the  ])remises. 

§  7.  That  article  three  hundred  and  seventy-five  of  said 
code  be  so  amended,  that  when  the  plaintiff  resides  out  of  the 
State,  or  in  the  State,  but  in  a  different  parish  from  the  de- 
fendant, said  defendant  may  institute  a  demand  in  reconven- 
tion against  liim  for  any  cause,  although  such  demand  be  not 
necessarily  connected  with,  or  incidental  to  the  main  cause  of 
action. 

See  ante  374. 

Art.  376. — If  the  demand  instituted  by  the  defendants  be 
one,  in  its  nature,  independent  from  the  action  brought  by 


V 


OF  DEMANDS  IN  WARRANTY.  171 

the  plaintiff,  it  shall  be  considered  as  a  principal,  and  not  a 
reconventional  demand,  and  must  be  brought  at  the  domicil 
of  the  plaintiff. 

Art.  377. — In  all  cases  of  reconvention,  the  defendant 
may  plead  it,  either  as  an  exception,  in  his  answer  to  the  prin- 
cipab  demand,  or  institute  a  distinct  and  separate  demand  be- 
fore the  court  in  which  the  main  action  is  pending  ;  and  the 
original  plaintiff  shall  be  bound  to  answer,  Avithout  pleading 
to  the  jurisdiction  of  the  court,  even  if  he  has  his  domicil 
elsewhere  ;  pro\dded  the  court  be  competent. 

6  N.  S.  611 ;  7  N.  S.  405 ;  1  L.  266 ;  2  L.  386 ;  4  L.  104,  484,  485  ;  5  L.  450  ; 
8L.  261;  9  L.  310;  10  L.  186;  5  R.  2;  10  R.  119. 


Sec.  III. — Of  demands  in  loarranty. 

Art.  378. — The  obligation  which  one  contracts  to  defend 
another  in  some  action  which  may  be  instituted  against  him, 
is  termed  loarranUj.  The  one  who  has  contracted  this  obli- 
gation is  called  the  warrantor. 

3  M.  2G1 ;  6  N.  S.  391,  453 ;  8  N.  S.  356,  549  ;  1  L.  38,  110 ;  7  L.  187  ;  8  L.  37  ; 
11  L.  276;  13L.  19,  23;  18  L.  103;  19  L.  368 ;  1  R.  55;  2  R.  187,  225;  2  A. 
219,  254,  828  ;  6  A.  32. 

Art.  379. — Warranty  may  be  of  two  kinds,  real  or  per- 
sonal. 

Real  warranty  is  that  which  arises  in  real,  or  hypothecary 
actions,  as  when  a  purchaser  is  sued  in  eviction  of  an  immov- 
able property  which  has  been  sold  to  him. 

Personal  warranty  is  that  which  takes  place  in  personal  ac- 
tions ;  it  arises  from  the  obligation  which  one  has  contracted, 
to  pay  the  whole,  or  a  part  of  a  debt,  due  by  another  to  a 

third  person. 

8  R.  27. 

Art.  380. — When  one  is  sued  in  eviction  of  an  immovable 
property  sold  to  him,  or  for  the  pa}TQent  of  a  debt  which  an- 
other had  promised  to  pay  on  his  account  to  the  plaintiff,  he 
shall  be  entitled  to  a  delay,  'in  order  to  have  his  warrantor 


172  OF  DEMANDS  IN  WARRANTY. 

made  a  party  to  the  suit,  as  provided  in  the  following  ar- 
ticle. 

7  N.  S.  587. 

Art.  381. — The  delay  granted  to  call  the  warrantor,  must 
be  the  same  as  that  given  to  such  warrantor,  to  answer  to  the 
demand  instituted  against  him,  according  to  the  distance  of 
his  domicil  from  the  i)lace  where  the  court  is  held,  in  which 
the  main  action  is  pending. 

UL.  497;  19  L.  473;  1  R.  133. 

Art.  382. — The  defendant  wishing  to  call  one  in  warranty, 
may,  in  his  answer,  pray  the  court  to  decree  against  his  war- 
rantor the  same  judgment  which  may  be  rendered  against  him 
on  the  principal  action ;  such  prayer  will  he  considered  as  a 
demand  in  warranty. 

Art.  383. — The  clerk  of  the  court  in  wliich  the  defendant 
has  in  his  answer,  called  one  in  warranty,  must  make  out  a 
copy  of  such  answer,  and  issue  a  citation,  both  of  which  shall 
be  served  on  the  warrantor,  who  shall  be  allowed  for  answer- 
ing, the  same  delay  as  in  ordinary  suits  ;  and  he  shall  address 
the  same  to  the  sheriff  of  the  parish,  in  wliich  the  warrantor 
resides,  in  order  that  it  be  notified  to  liim,  in  the  same  manner 
as  is  directed  in  ordinaiy  suits. 

Art.  384. — The  warrantor  thus  cited,  is  bound  to  appear 
before  the  court  in  which  the  principal  demand  has  been  insti- 
tuted, even  when  he  resides  out  of  its  jurisdiction,  in  order  to 
defend  the  suit  for  the  defendant  ;  he  may  plead  every  excep- 
tion in  defending  the  cause  wliich  the  defendant  himself  might 
have  pleaded,  even  such  as  are  personal  to  such  defendant, 

4  N.  S.  393  ;  8  N.  S.  15C ;  1  L.  38 ;  6  L.  350,  378 ;  8  L.  239,  252 ;  10  L.  271. 

Art.  385. — If  the  defendant  is  cast  in  the  action,  the 
judge,  when  he  gives  judgment  against  such  defendant,  must 
render,  at  the  same  time,  a  judgment  in  favor  of  the  defend- 
ant against  his  warrantor,  for  whatever  indemnity  may  be  due 
to  such  defendant,  as  well  as  for  all  the  loss  and  damage  he 
may  have  sustained,  by  reason  of  the  action. 


OF  DEMANDS  IN  WARRANTY.  173 

No.  298.  Stat.  30th  April,  1853.— An  act  to  amend  the 
three  hundred  and  eighty-Jifth  article  of  the  Code  cf  Practice. 
That  article  three  hundred  and  eighty-five  of  the  Code  of  Prac- 
tice be  amended  and  re-enacted  so  as  to  read  as  follows  :  "  If  the 
defendant  is  cast  in  the  action,  the  judge,  when  he  gives  judg- 
ment against  such  defendant,  must  render  at  the  same  time  a 
judgment  in  favor  of  the  defendant,  against  his  warrantor,  for 
whatever  indemnity  may  be  due  to  such  defendant,  as  well  as  for 
all  the  loss  and  damage  he  may  have  sustained  by  reason  of  the 
action.  But  no  sheriff,  constable,  or  other  ofScer  of  court,  shall 
have  the  right  to  recover  of  any  seizing  creditor,  sued  as  warran- 
tor, the  counsel  fees  of  such  shentf,  constable  or  other  officer,  in- 
curred by  calling  such  creditor  in  warranty,  unless  the,  latter 
shall,  within  ten  days  only  from  service  of  the  call  in  waiTanty, 
fail  to  appear  and  make  defence  for  the  defendant  who  calls 
him. 

G  N.  S.  m  ;  5  R.  76 ;  8  R.  488 ;  9  R.  50. 

Art.  386. — The  judgment  so  rendered,  shall  be  exocutory 
on  the  part  of  the  plaintiff  against  the  defendant,  and  on  the 
part  of  tlie  defendant  against  his  warrantor. 

8  R.  488. 

Art.  387. — If  one  called  in  warranty  has  himself  a  wan-an- 
tor  who  is  bound  to  defend  him,  he  may  also  in  liis  answer, 
pray  that  his  warrantor  be  cited  to  appear  to  the  suit  ;  he 
shall  be  entitled,  in  order  to  do  so,  to  the  same  delay  granted 
to  the  defendant  for  calhng  liis  wan*antor  ;  the  same  rule  shall 
govern,  if  there  be  a  greater  number  of  warrantors.  In  such 
cases,  the  proceedings  shall  be  carried  on,  and  the  judgment  ren- 
dered and  executed  in  the  manner  provided  in  the  preceding 
articles. 

Art.  388. — The  defendant,  though  he  has  not  called  his 

warrantor  to  defend  the  suit  brought  against  him,  docs  not  lose 

^  on  that  account,  his  action  in  warranty,  unless  tlie  warrantor 

prove  that  he  had  means  for  defeating  the  action,  wliich  were 

not  used,  owing  to  the  defendant  having  failed  to  call  liim  in 


174        OF  INTERVENTION  OR  INTERPLEADING. 

wan-anty,  or  ha^^ng  neglected  to  apprise  him  of  the  suit  hav- 
ing been  brought. 


Sec.  IV. — Of  Intervention  or  Interpleading. 

Art.  389. — An  intervention  or  interpleader,  is  a  demand 
by  which  a  third  person  requires  to  be  permitted  to  become  a 
party  in  a  suit  between  other  persons  ;  either  by  joining  the 
plaintiff  in  claiming  the  same  thing,  or  something  connected 
with  it,  or  by  uniting  with  the  defendant  in  resisting  the  claims 
of  the  plaintiff. 

11  M.  260,  455  ;  4  N.  S.  434, 488 ;  3  N.  S.  330  ;  5  N.S.  501 ;  7  N.  S.  197,  334, 
587,  615;  2L.  456;  3  L.  183;  4L.  157  ;  6  L.  486  ;  6L.  690;  lOL.  ?18;  11  L.462; 
14  L.  274;  15  L.  417;  16  L.  264;  19  L.  154;  4  R.  290;  9  11.180;  llR.  314,  326; 
12  R.  215;  2  A.  271,  355,  462,  488,  755;  3  A.  222,  331 ;  4  A.  206,  212,  279,544. 

Art.  390. — In  order  to  be  entitled  to  intervene,  it  is  enough 
to  have  an  interest  in  the  success  of  either  of  the  parties  to 
the  suit. 

Stat.  7fh  April,  1836,  p.  172.— §  10.  Articles  three  hun- 
dred and  eighty-nine  and  three  hundred  and  ninety,  shall  be 
so  amended,  that  it  shaU  not  be  necessary  that  the  i)arty  in- 
terpleading should  join  either  the  plaintiff  or  defendant,  but 
that  it  may  be  lawful  for  him,  where  his  interest  requires  it,  to 
oppose  both. 

IL.  431;  7L.  196;  4R.  290;  11  R.  326. 

Art.  391. — One  may  intervene,  either  before  or  after  issue 
has  been  joined  in  the  cause  ;  provided  the  intervention  do  not 
retard  the  principal  suit :  the  person  intervening  must  be 
always  ready  to  plead,  or  to  exhibit  his  testimony  ;  because 
he  has  always  liis  remedy  by  a  separate  action  to  vindicate  his 
rights. 

5  N.  S.  501 ;  7  N.  S.  587  ;  11  R.  326 ;  4  A.  206. 

Art,  392. — The  plaintiff,  in  intervention,  must  institute 
his  demand  before  the  court  in  which  the  principal  action  has 
been  brought ;  being  considered  as  plaintiff,  he  must  foUow 
the  jurisdiction  of  the  defendant. 

6N.S.  658;  19  L.  154. 


OF    THE    OPPOSITION    OF    THIRD    PERSONS,  175 

Art.  393. — The  intervention  must  be  formed  hj  a  petition 
addressed  to  the  court,  before  which  the  principal  demand  has 
been  brought ;  it  must  set  forth  the  grounds  on  which  the 
cause  is  supported. 

This  petition  must  be  served  on  the  party  against  which  it 
is  directed,  in  order  that  he  may  answer  to  the  same  in  the 
delay  given  in  ordinary  suits. 

19  L.  154;  3  A.  366. 

Art.  394. — The  judge  cannot  refuse  to  admit  an  inter- 
vention ;  but  he  must  pronounce  on  its  merits,  art  the  same 
tiine  that  he  decides  the  principal  action  ;  if  the  demand  be 
not  sustained,  the  person  intervening  shall  be  decreed  to  pay 
the  incidental  costs. 

3  A.  321,366;  4  A.  212, 


Sec.  V. — Of  the  opposition  of  third  persons. 

Art.  395. — This  opposition  is  a  demand  brought  by  a 
third  person,  not  originally  a  party  in  the  suit,  for  the  jjurpose 
of  arresting  the  execution  of  an  order  of  seizure,  or  judgment 
rendered  in  such  suit,  or  to  regulate  the  effect  of  such  seizure, 
in  what  relates  to  him. 

3  L.  495 ;  7  L.  486 ;  4  R.  39, 466 ;  5  R.  68,  352,  496  ;  6  R.  427  ;  8  R.  14 ;  9  R.  302 ; 
1  A.  146, 330  ;  3  A.  454,  597. 

Art.  396. — Such  ojiposition  may  take  place  in  two  cases  : 

1.  When  the  third  person  maldng  the  opposition,  pretends 
to  be  the  owner  of  the  thing  which  has  been  seized  ; 

2.  When  he  contends  that  he  has  a  privilege  on  the  pro- 
ceeds of  the  thing  seized  and  sold. 

5R.  496;  10R.28;  11  R.  181;  See  notes  to  art.  395. 

Art.  397. — This  opposition  must  be  made  before  the  court 
which  has  granted  the  order  of  seizure,  or  the  judgment  in 
virtue  of  which  the  provisional  seizure  has  been  effected. 

10R.424;  11R.181;  12R.519;  3  A.454;  19L.154;  Sec  notes  to  art.  395  ; 
See  also  4  N.  S.  390 ;  7  N.  S.  659. 

Art.  398. — If  the  opposition  has  for  its  object  to  set  aside 


176  OF    THE    OPPOSITION    OF    THIRD    PERSONS. 

the  order  of  seizure,  as  having  been  effected  on  pro|3erty  not 
belonging  to  the  party  against  whom  the  order  was  directed, 
but  owned  on  tlie  contrary  by  the  third  person  making  the  op- 
position, it  must  be  done  by  means  of  a  petition,  which,  to- 
gether with  a  citation,  must  be  served  on  the  party  making 
the  seizure,  as  in  ordinary  suits  :  but  such  opposition  shall  be 
considered  as  a  separate  demand,  distinct  from  the  suit  in 
which  the  order  was  granted. 

3  L.  495  ;  1  R.  41 ;  8  R.  14 ;  10  R.  424 ;  See  art.  395. 

Art.  399. — The  court  may,  nevertheless,  at  the  request 
of  the  third  opponent,  enjoin  the  sheriff  not  to  proceed  to  the 
sale  of  the  property  thus  claimed :  i)rovided  such  tliird  person 
give  security  to  the  plaintiff,  for  such  an  amount  as  the  court 
shall  determine,  to  be  responsible  for  all  damages  which  said 
plaintiff  may  sustain,  should  the  opposition  be  wrongfully 
made. 

4  A.  279;  See  art.  400. 

Art.  400. — If  the  tliird  person,  who  has  intervened  in  the 
suit,  has  not  injoined  the  sale  of  the  property  of  which  he 
claims  the  ownership,  or  has  failed  to  furnish  the  surety  re- 
quired, his  opposition  shall  not  prevent  the  sheriff  from  sell- 
ing the  property  under  seizure  ;  but,  in  such  case,  the  sheriff 
shall  be  personally  responsible  for  all  damages  wliich  said  sale 
may  occasion  to  the  intervening  party  ;  and  the  shcrifi'  shall 
have  his  recourse  against  the  party  who  has  obtained  the  order 
of  seizure.  If  the  opposition  be  sustained,  the  sale  made  by 
the  sheriff  shall  be  null. 

See  art.  395. 

Art.  401. — If,  on  the  contrary,  the  opposition  be  made  on 
the  gi'ound  that  the  third  opponent  has  a  privilege  which  en- 
titles him  to  be  paid,  in  preference  to  the  party  making  the 
seizure,  out  of  the  proceeds  of  the  sale  of  the  property  seized  ; 
as  when  there  are  several  seizures  or  conflicting  claims,  on  the 
same  property  ;  such  opposition  may  be  made  by  motion,  of 
which  due  notice  must  be  given,  both  to  the  party  who  has 
made  the  seizure,  and  to  the  sheriff;  and  the  court,  without 


OF    EEAL    TENDER.  177 

requiring  any  security  from  the  tliircl  opponent,  shall  direct 
the  sheriff  to  retain  in  his  hands,  subject  to  their  further  order, 
the  proceeds  of  the  sale. 

4R.  39;  5  R.  596;  7E.  73,  87;  10  R.  28,154;  11  R.  181;  1  A.  144,  330- 
6  A.  756. 

Art.  402. — If  the  third  person  has,  either  a  privilege  of 
a  higher  class  than  that  of  the  party  who  has  made  the  seiz- 
ure, or  a  special  hypothecation  duly  registered,  anterior  to  that 
of  such  party  ;  in  such  case,  the  third  opponent  shall  be  paid 
for  the  amount  of  his  claim,  together  with  the  interest  and 
costs ;  and  the  plaintiff  in  the  cause  shall  be  entitled  only  to 
receive  the  surplus,  if  there  be  any. 

5  A.  736 ;  See  also  ante,  art.  401. 

Art.  403. — If,  on  the  contrary,  the  third  person  interven- 
ing has  only  a  general  or  legal  hypothecation  on  the  property 
seized,  the  plaintiff  in  the  original  suit  shall  be  paid  in  pre- 
ference, if  he  prove  that  the  defendant  has  other  property  of 
sufficient  value,  to  satisfy  the  claiju  of  the  third  opponent : 
in  such  case,  the  third  person  intervening  shall  be  condemned 
to  pay  the  costs. 

See  art.  401. 


CHAPTER   IV. 

I 

Of  the  proceedings  after  issue  joined^  until  judgment  he  given. 
Sec.  I. — Of  real  tender. 

Art.  404. — When  the  defendant  confesses  that  he  owes 
the  whole  or  a  part,  either  of  the  debt,  or  of  the  property  de- 
manded of  him,  and  the  plaintiff  refuses  to  receive  what  such 
defendant  acknowledges  that  he  owes  him,  such  defendant 
may  make  a  real  tender  of  the  same  to  such  plaintiff,  either 
after  the  issue  has  been  joined,  or  even  previous  to  any  judicial 
proceeding  having  been  instituted  against  him. 

16L.206;  4R.144;  11R.520;  12R.648. 

12 


178  OF    REAL    TENDEri. 

Art.  405. — It  is  necessary  to  distinp^ish  such  real  tenders, 
which  are  made  for  a  debt  for  money  due,  from  those  which 
have  for  their  ohjcct,  tlic  ol»li<ration  of  delivering  a  thing  cer- 
tain and  specific,  or  a  qantity  of  any  particular  tiling,  or  im- 
movable property. 

Art.  406. — A  real  tender  must  be  made  in  the  place 
agreed  upon  for  the  payment ;  or  if  there  be  no  special  agree- 
ment as  to  the  place  of  payment,  it  must  be  made  either  to 
the  creditor  himself,  or  at  his  dwelling,  or  at  the  domicil 
chosen  for  the  execution  of  the  agreement. 

15  L.  483. 

Art.  407. — When  the  tender  is  for  money  due,  it  must 
be  made  to  the  creditor  liimself,  or  at  his  actual  or  chosen  do- 
micil, by  the  debtor,  or  by  his  agent,  in  the  presence  of  two 
witnesses  residing  in  the  place,  by  tendering  to  such  creditor 
the  sum  which  is  due  to  him,  with  the  interest,  and  such 
costs  as  he  may  have  incurred,  and  exhibiting  such  sum  to 
him  in  the  presence  of  suijli  witnesses,  in  the  current  coin  of 
the  United  States. 

The  same  formalities  must  be  observed  in  making  a  tender 
of  any  thing  due,  and  consisting  of  things  certain,  which  the 
debtor  can  easily  carry  about  him. 

9  L.  11  ;  15  L.  20G;  4  R.  144;  2  A.  441  ;  6  A.  13. 

Art.  408. — If  the  debt  be  for  a  specific  thing,  or  for  a 
quantity  of  any  kind  of  movable  property,  which  cannot  be 
easily  transported,  or  which  are  to  be  delivered  at  a  place  de- 
signated in  the  contract,  or  necessarily  indicated  by  the  nature 
of  the  obligation,  the  debtor  must  give  previous  notice  in  writ- 
ing to  the  creditor,  that  on  such  a  day  and  hour,  he  shall  be 
at  the  place  where  the  things  to  be  tendered  are  deposited,  in 
order  there  to  make  a  delivery  of  the  same  to  him. 

11  R.  516;  Bee  3  L.  886. 

Art.  409. — After  such  notice,  the  debtor  or  his  agent 
must,  on  the  day  and  at  the  hour  appointed,  be  present  at 
the  place  where  the  property  to  be  delivered  is  deposited  ;  and 


OF    REAL    TENDER.  _  179 

there,  in  the  presence  of  two  ■fitnesses  residing  in  the  i)lace, 
make  a  real  tender  of  the  same  to  the  creditor,  by  showing 
them,  if  he  be  present,  and  designating  them  to  him,  and  by 
offering  to  deliver  the  same  to  him  immediately. 

11  R.  516. 

Art.  410. — If  the  object,  on  the  part  of  the  debtor,  be 
real  property,  a  debt,  or  some  other  personal  right  which  the 
debtor  has  promised  to  sell,  transfer,  or  convey,  to  the  creditor, 
such  debtor  nnist  previously  give  written  notice  to  the  credi- 
tor, to  be  and  appear,  on  a  certain  day,  and  at  a  fixed  hour, 
at  the  office  of  some  public  notaiy,  or  of  some  officer  exercis- 
ing similar  functions,  or  at  such  other  place  as  he  may  desig- 
nate, in  order  there  to  receive  the  sale,  cession,  transfer  or 
conveyance,  which  he  is  ready  to  make  to  him,  cither  of  the 
real  estate,  debt,  or  personal  right  which  he  had  contracted  to 
transfer  to  such  creditor. 

When  the  debt  to  be  transferred,  consists  in  bank  stock, 
the  tender  of  the  same  must  be  made  at  the  bank  whose  stock 
is  to  be  transferred. 

Art.  411. — After  due  notice  having  been  given,  the  debt- 
or must  aj)pear  either  in  person,  or  by  his  agent,  at  the  place 
designated,  jiursuant  to  the  pro\ision  of  the  preceding  article, 
and  there,  in  the  presence  of  two  witnesses,  residing  m  the 
place,  offer  to  the  creditor,  if  he  appear,  to  execute  in  his  fa- 
vor, in  due  form,  either  the  sale,  conveyance,  or  transfer, 
which  he  had  contracted  to  execute. 

Art.  412. — If  the  creditor  refuse  to  accept  the  real  ten- 
der thus  made  to  him,  or  do  not  attend,  on  the  day,  hour,  and 
at  the  place  designated  to  him  by  the  debtor,  to  receive  the 
dehvery  of  the  property  contracted  to  be  sold,  conveyed,  or 
transferred  as  prescribed  in  the  preceding  articles,  the  debtor 
will  have  the  option  either  to  retain  such  property,  in  his  pos- 
session until  the  creditor  demands  the  same,  judicially,  or  to 
deposit  them  at  the  charge  and  risk  of  such  creditor. 

11  R.  516;  2  A.  243. 

Art.  413. — If  the  debtor  determine  to  deposit  the  pro- 


180  OF    REAL    TENDER. 

perty,  it  must  be  deposited,  if  it  consists  in  specie,  in  some  of 
the  banks  of  the  State,  or  in  some  of  their  branches  ;  if  in 
goods,  merchandise,  or  some  other  personal  property,  the  same 
must  be  dejiosited  in  some  store,  warehouse  or  other  safe 
place,  for  the  accoimt  of  the  creditor.  If  the  property  con- 
sist in  slaves,  and  the  debtor  apprehend  their  nmning  away, 
he  may  have  them  committed  to  jail,  and  employ  them  on 
public  works  for  tlic  account  of  the  creditor. 

The  debtor  must  apprise  the  creditor,  by  a  written  notice, 
of  his  having  placed  the  property  in  deposit,  and  of  the  man- 
ner of  his  having  effected  the  same  ;  he  shall  be  bound  to  give 
to  the  preservation  of  the  property  deposited,  the  samp  atten- 
tion as  he  would  give  to  that  of  his  own  property.  The  cred- 
itor shall  be  bound  to  reimburse  all  the  expenses  wluch  he 
shall  incur,  on  account  of  the  said  deposit,  if  the  tender  is  de- 
creed to  have  been  properly  made. 

4R.  144;  11  R.  51C;  2  A.  243. 

Art.  414. — After  depositing  the  property  as  above  pre- 
scribed, shoidd  it  perish,  be  spoiled,  or  its  value  diminish, 
without  any  fault  on  the  part  of  the  debtor,  the  loss  shall  be 
on  the  account  of  the  creditor,  if  the  tender  be  adjudged 
vaUd. 

11  R.  51G;  2  A  243. 

Art.  415. — If,  on  the  trial  of  a  cause,  it  appear,  that  pre- 
vious to  the  suit  having  been  instituted,  the  defendant  had 
made  a  real  tender,  in  the  form  above  jirescribed,  of  the  sum 
due,  or  of  the  property  demanded,  the  plaintiff  shall  be  de- 
creed to  pay  all  the  costs  of  the  suit,  and  all  the  expenses  in- 
curred for  the  preservation  of  the  property,  if  the  same  has 
been  deposited,  and  shall  recover  only  the  sum  or  thing  ten- 
dered to  him,  and  such  interest  only  as  had  accrued,  previous 
to  bringing  the  action. 

4  L.  94;  6  L.  19;  4  R.  144;  2  A.  243,  441,  496. 

Art.  416. — When  the  real  tender  has  been  made  since 
the  institution  of  the  suit  by  the  plaintiff,  though  the  proper- 


OF    THE    AMENDMENTS,    ETC.  181 

ty  has  been  placed  in  deposit  as  above  prescribv^vl,  the  defend- 
ant shall  nevertheless,  although  the  tender  be  declared  valid, 
be  condemned  to  pay  the  costs,  and  all  the  expenses  wliich 
have  been  incurred  up  to  the  date  of  such  real  tender  ;  and 
the  plaintiff  shall  be  bound  to  pay  only  such  costs  as  have 
arisen  since  his  refusal  to  accept  such  real  tender. 

2  A.  243. 

Art.  417. — Real  tenders  may  be  made  at  every  stage  of 
the  suit,  pre\ious  to  the  definitive  judgment. 

2  A.  243. 

Art.  418. — All  the  other  rules  relative  to  real  tender,  pro- 
vided by  the  Ci\il  Code,  not  re-enacted  in  tliis  section,  and 
which  are  not  contrary  to  the  provisions  above  expressed,  must 
be  observed  ;  but  all  the  provisions  of  the  other  statutes  relat- 
ing to  the  same  subject,  are  hereby  repealed. 

2  A.  243. 

Sec.  II. — Of  the  amendments  tohich  may  he  made  to  the  peti- 
tion, or  to  the  answer,  of  the  consolidation  of  causes,  and  of 
commissions  for  examining  ivitncsscs. 

Art.  419. — After  issue  joined,  the  plaintiff  may,  with 
the  leave  of  the  court,  amend  his  original  petition  ;  pro\dded 
the  amendment  does  not  alter  the  substance  of  his  demand, 
by  making  it  different  from  the  one  originally  brought. 

See  references  to  art.  421. 

Art.  420. — The  defendant  may  also  amend  his  answer, 
subject  to  the  same  rules,  and  add  to  it  new  exceptions  :  pro- 
vided they  be  not  of  the  dilatory  kind.  After  answering  on 
tl"vc  merits,  dilatory  exceptions  shall  not  be  raised  by  way  of 
amendment,  unless  with  the  consent  of  the  plaintiff. 

See  references  to  art.  421. 

Art.  421. — When  one  of  the  parties  has  amended,  either 
his  petition,  or  his  answer,  the  other  party  has  the  right  of 
answering  the  amendment ;  but  it  must  be  done  immediately, 


182  OF    THE    AMENDMENTS,    ETC. 

tmless  the  amendment  be  of  such  a  nature  as  to  induce  the 
court  to  grant  further  time  for  answering  the  same. 

1st.  Amendments.     General  principles. 

2  N.  S.  263 ;  8  N.  S.  665  ;  4  N.  S.  425  ;  5  N.  S.  192;  6  N.  S.  417,  568  ;  1  N. 
a  512,  646;  8  N.  S.  242,  339;  1  L.  214;  2  L.  113,  220;  4  L.  208,  298;  5  L. 
363;  7  L.  188,  343,  413;  1  R.  553;  7  R.  436;  9  R.  78,  227;  1  A.  254,  274; 
3  A.  131,  139  ;  5  A.  566,  674  ;  6  A.  530. 

2d.  At  what  time  allowed. 

1  N.  S.  541 ;  2  N.  S.  625  ;  3  N.  S.  308 ;  4  N.  S.  516  ;  7  N.  S.  647  ;  1  L.  433 ; 
3  L.  487  ;  8  L.  298,  465  ;  12  L.  9 ;  17  L.  82 ;  19  L.  542 ;  1  R.  58  ;  3  R.  123  ; 
.7R.  63,  436;    11  R.  418;   12  R.  138;   2  A.  905  ;  3  A.  139,  626  ;   5  A.  575. 

3d.  Admissibilit}-,  as  affecting  issue,  demand,  or  previous  allegations. 

1  N.  S.  583  ;  4  N.  S.  136,  516 ;  5  N.  S.  70,  679 ;  7  N.  S.  283  ;  8  N.  S.  172,  298, 
821,342,407,438;  L.  433  ;  2L.  207,  1392;  3  L.  340;  6L.380;  lOL.  424,  516; 
11  L.  76;  12  L.  589;  13  L.  147,  416;  15  L.  132,  195;  16  L.  151;  1  R.  34,  362; 
2R.  274,  388;  4  R.  466;  7  R.  436;  9  R.  78 ;  1  A.  136,  254,  372;  2  A.  453,  755; 
3  A.  337,  655  ;  4  A.  270,  531. 

4th.  Admissibility  to  change  parties  or  allege  subsequent  matters. 

2  L.  146,501  ;  4L.  298,  400;  10  L.  516;  11  L.  573;  8  R.  259;  9  R.  180;  10 
R.  45,  430;  11  R.  314;   1  A.  136;  2  A.  254,  339. 

Art.  422. — When  the  parties  have  instituted  against  each 
other  several  suits,  either  as  principal  or  incidental  demands, 
before  the  same  tribunal,  the  court  may,  at  the  request  of  one 
of  the  parties,  order  that  the  same  be  consolidated,  if  from 
their  nature  they  may  be  compensated,  in  order  that  they  may 
be  all  decided  by  one  single  judgment. 

Art.  423. — Consolidation  of  suits  may  be  ordered,  when- 
ever a  demand  in  wai-ranty  has  been  instituted  before  the 
same  court,  separately  from  the  main  action,  provided  the 
two  suits  are  ready  for  trial  at  the  same  time. 

Art.  424. — When  cither  the  plaintiff  or  the  defendant 
has  witnesses  whom  he  wishes  to  be  heard  in  support  of  his 
claims,  he  must  cause  the  testimony  of  such  witnesses  to  be 
taken  in  writing,  to  be  read  in  evidence  on  the  trial  of  the 
cause,  pursuant  to  the  rules  of  the  respective  courts. 

Post,  467  ;  6  N.  S.  280  ;  5  R.  17,  127. 

Art,  425. — If  the  witness,  whom  either  the  plaintiff  or 
defendant  wish  to  be  heard,  reside  out  of  the  parish  in  which 
jhe  suit  is  pending,  such  plaintiff  or  defendant  shall  be  en- 


OF    THE    AMENDMENTS,    ETC.  183 

titled  to  obtain  from  the  court  a  commission  directed  to  some 
judge  or  justice  of  the  peace  of  the  place  where  such  witness 
resides,  to  take  his  deposition. 

Stat.  25th  3Iarch,  1828,  p.  152.— §  8.  In  any  case  where 
commissions  are  obtained  to  take  depositions  of  witnesses  in  civil 
matters,  as  mentioned  in  the  four  hundred  and  twenty-fifth 
article  of  the  Code  of  Practice,  the  commissions  may  be  directed 
to  any  judge  or  justice  of  the  peace,  or  to  any  other  person 
authorized  by  law  to  administer  oaths. 

Ante,  138;  post,  780;  4L.  229;  6  R.  127  ;  2  A.  138. 

Art.  426. — The  party  wishing  to  take  the  deposition  of  a 
witness,  pursuant  to  the  provisions  of  the  preceding  article, 
must  annex  to  the  commission  which  he  has  obtained  to  that 
effect,  written  interrogatories,  containing  the  questions  to  be 
put  to  the  witness  ;  such  inteiTOgatories,  previous  to  being 
sent,  must  be  submitted  to  the  adverse  party,  who  may  add 
to  the  same  whatever  questions  he  wishes,  on  his  part,  to  have 
put  to  the  witness. 

Stat.  25th  March,  1828,  p.  152.— §  7.  In  all  cases  where  a 
party  to  a  suit  is  required  to  submit  the  interrogatories  to  be 
put  to  witnesses  whose  testimony  is  to  be  taken  under  commis- 
sion, it  shall  be  the  duty  of  the  party  submitting  the  same,  to 
have  them  served  on  the  adverse  party,  or  his  or  their  counsel 
three  days  previous  to  having  them  forwarded. 

2  N.  S.  618  ;  5  N.  S.  213  ;  1  L.  436  ;  9  L.  424 ;  5  R.  190 ;  2  A.  138. 

Art.  427. — If  the  adverse  party  is  not  represented  by  an 
advocate  on  record,  defend  himself  his  cause,  or  suffer  a  judg- 
ment by  default  to  go  against  him,  the  party,  on  who^e  mo- 
tion the  commission  has  been  granted,  must  cause  the  inter- 
rogatories intended  to  be  put  to  the  witness,  to  bo  notified  to 
such  party,  in  order  that  he  may  add,  within  three  days,  if 
such  party  reside  at  the  place  where  the  court  is  held,  what- 
ever other  interrogatories  he  wishes  to  be  put  to  the  witness, 
on  his  part. 

Art.  428 — If  the  adverse  party,  having  no  a,dvocate,  as 


184  OF    THE    AMENDMENTS,    ETC. 

above  expressed,  reside  in  the  parish  where  the  deposition  is 
to  be  taken,  the  judge  or  justice  of  the  peace,  to  whom  the 
commission  is  directed,  must,  before  examining  the  witness, 
give  written  notice  to  such  a  party,  of  the  place  wliere,  and 
of  tlic  day  and  hour  at  wliieli  lie  ■will  take  the  testimony  of 
the  witness  ;  always  allowing  a  reasonable  delay  for  the  party 
to  attend. 

Stat.  25th  March,  1828,  p.  152.— §  9.  Whenever  interro- 
gatories in  ^^Titing  have  been  annexed  to  the  said  commissions, 
and  communicated  either  to  the  opposite  party  or  his  counsel, 
it  shall  be  no  longer  necessary  to  give  a  notice  in  writing  to 
the  said  party,  of  the  place  and  day,  where  the  depositions  of 
the  said  mtnesses  shall  be  taken,  sa\'ing  to  both  parties,  or  cither 
of  them  the  right  of  being  present,  if  they  think  it  jjroper  to 
the  taking  of  the  said  depositions,  but  A\ithout  being  permit- 
ted to  add  any  further  questions  to  those  contained  in  the 
aforesaid  interrogatories,  except  with  the  consent  of  the  other 
party. 

15  R.  190;  2  A.  138. 

Art.  429. — But  when  the  adverse  party,  having  no  advo- 
cate on  record,  resides  neither  at  the  place  where  the  court  is 
held,  nor  in  the  parish  where  the  deposition  is  to  be  taken,  the 
mode  of  giving  notice  to  such  party  shall  be  by  delivering  to 
the  clerk  of  the  court,  a  copy  of  the  interrogatories,  to  be  by 
him  stuck  up  in  liis  office. 

This  rule  shall  govern  in  all  cases  where  written  notice  is 
required  to  be  given  to  a  party  in  a  suit,  Avho  has  no  advocate 
on  record,  and  who  does  not  reside  at  the  place  where  the 
court  before  which  the  cause  is  pending,  is  held. 

Art.  430. — When  the  witness,  whom  either  the  plaintiff 
or  defendant  wish  to  examine,  resides  in  the  parish  where  the 
cause  is  pending,  but  is  old,  infirm,  or  about  to  depart  from 
the  State,  so  that  the  party  having  need  of  his  testimony,  fears 
that  he  may  be  deprived  of  the  advantage  he  expects  to  de- 
rive from  the  same,  such  party  may,  on  motion,  obtain,  even 
before  issue  joined  in  the  suit,  by  swearing  to  the  facts  on 


OF    THE    AMENDMENTS,    ETC.  185 

which  he  relies  in  support  of  his  application,  a  commissioii 
from  the  court,  directing  the  deposition  of  such  witness  to  be 
taken  by  any  judge  or  justice  of  the  peace  of  the  place,  after 
having  given  notice  either  to  the  adverse  party,  or  to  his  ad- 
vocate, as  above  provided.  A  reasonable  time  must  be  given 
to  enable  such  party  or  his  advocate,  to  attend  at  the  examina- 
tion. 

In  this  case,  it  is  not  required  that  the  party  who  has  ob- 
tained a  commission  to  examine  witnesses,  should  communi- 
cate the  written  interrogatories  to  the  adverse  party,  or  to  his 
advocate. 

7  L.  585  ;  post,  4C7  ;  2  A.  480. 

Art.  431. — The  judge  or  justice  of  the  peace,  to  whom 
commissions  for  taldng  testimony  are  directed,  shall  cause  such 
witnesses  to  be  summoned  to  appear  before  him,  for  the  pur- 
pose of  giving  their  testimony  :  such  judge  or  justice  of  the 
peace  may  compel  the  attendance  of  such  witnesses,  if  they 
refuse  to  appear,  in  the  same  manner  as  in  causes  pending 
before  him. 

Ante,  135. 

Art.  432. — When  ^^itncsses,  thus  summoned,  appear,  the 
judge  or  justice  to  whom  the  commission  has  been  directed, 
shall  swear  each  of  them  to  declare  the  truth  on  the  questions 
put  to  them  in  the  cause  :  they  shall  reduce  to  writing  the  an- 
swer of  such  witnesses  to  the  interrogatories  annexed  to  the 
commission,  or  to  the  questions  put  to  them  by  the  parties  or 
their  advocates,  if  the  same  be  present,  in  the  cases  where  it  is 
necessciry  that  such  questions  be  put  in  writing. 

6  N.  S.  313 ;  7  N,S.  321  ;  7  L.  585. 

Art.  433. — After  the  depositions  have  been  taken,  as  above 
directed,  the  judge  or  justice  of  the  peace,  before  whom  they 
have  been  taken,  must  cause  the  same  to  be  signed  by  the  wit- 
ness, or  in  case  such  witness  cannot  sign,  have  his  mark  affixed 
to  the  same,  in  his  presence.  He  shall  then  draw  a  verbal  pro- 
cess of  the  taking  of  such  deposition,  annex  the  same  to  the 
oojioniission  and  interrogatories,  if  there  be  any,  and  seal  the 


18C  OF    THE    AMENDMENTS,    ETC. 

same  with  his  private  seal ;  the  wliole  must  be  inclosed,  sealed 
and  directed  to  the  clerk  of  the  court. 

Stat.  20th  March,  1839,  p.  164.— §  8.  That  article  four 
hundred  and  thirty-three  of  said  code  be  amended,  by  striking 
out  therefrom  the  words  "  and  seal  the  same  with  his  private 
seal." 

2  L.  298,  4  L.  218  ;  5  L.  300 ;  7  L.  5S5;  9  K  424;  1  A.  318. 

Art.  434. — The  party,  on  whose  application  such  deposi- 
tions have  been  taken,  must,  before  he  can  use  the  same  as 
evidence  in  the  cause,  sliow  that  the  adverse  party  has  been 
served  with  a  -written  notice  of  the  time  and  place  designated 
for  taking  such  depositions,  as  Avell  as  with  a  copy  of  the  inter- 
rogatories intended  to  be  put  the  witnesses,  in  all  cases  where 
such  notice  is  required,  pursuant  to  the  pro\'isions  above  en- 
acted. 

Anto,  428  and  amcnJnient;  6  X.  S.  301  ;  8  N.  S.  450. 

Art.  435. — But  such  proof  shall  not  be  required,  if  the 
judge  or  justice,  by  whom  the  depositions  have  been  taken, 
certify  that  he  himself  notified  the  adverse  party  of  the  time 
and  place  fixed  for  taldng  such  depositions  before  him. 

Art.  436. — When  the  witness  intended  to  be  examined, 
hvcs  out  of  the  State,  the  party  who  wishes  to  obtain  a  com- 
mission, must  a})ply  to  the  court  where  the  suit  is  pending,  and 
file  a  declaration  on  oath,  containing  a  summary  statement  of 
all  tlie  fiicts  which  such  witness  is  expected  to  i)rove.  Copy 
of  such  declaration  must  be  served  on  the  adverse  party,  or  his 
advocate. 

Stat,  m  April,  1826,  p.  171.— §  11.  That  article  four 
hundred  and  thirty-six  be  so  amended,  that  it  sliall  be  sufticient 
for  a  party  wishing  to  take  the  testimony  of  witnesses  residing 
out  of  the  State  to  apply  for  the  same  to  any  judge  having 
jurisdiction  of  the  cause  and  not  in  open  court,  and  that  it 
shall  be  sufficient  simply  to  swear  to  the  materiahty  of  the 
testimony. 

Q  N.  S.  460  ;  2  L.  98  ;  4  L.  119  ;  5  L.  455 ;  4  R.  59 ;  1  A.  318,  327 ;  See  1  M.  23. 

Art.  437. — Commissions  to  examine  witnesses  out  of  the 


OF    THE    AMENDMENTS,    ETC.  187 

State  may  be  directed  to  any  judge,  justice  of  the  peace,  magis- 
trate, or  other  person  residing  at  the  place  where  such  wit- 
nesses live. 

4  L.  119 ;  5  L.  265 ;  11  L.  281  ;  Sec  Acts  of  1338,  p.  55,  relative  to  the  appoint- 
ment of  commissioners ;  amendments  to  art.  439. 

Art.  438. — Such  commissions  must  be  accomjjanied  with 
the  interrogatories,  after  the  same  have  been  duly  communica- 
ted or  notified  to  the  adverse  party,  or  his  advocate.  If  the 
adverse  party  reside  at  the  place  where  the  depositions  are  to 
be  taken,  such  party  must  be  notified  of  the  same,  in  the  man- 
ner provided  relative  to  taking  the  depositions  of  witnesses  re- 
siding in  the  State. 

Ante,  428. 

Art.  439. — In  all  cases  where  the  courts  grant  commissions 
for  taking  testimony,  either  out  of  the  State,  or  in  another  pa- 
rish, they  must  fix  a  term  for  returning  the  same.  In  doing 
this,  they  must  take  into  consideration  the  distance  and  the 
existing  mode  of  communication. 

Stat.  lOth  March,  1838,  p.  55.— §  1.  The  Governor  of 
the  State  is  hereby  authorized  to  appoint  one  or  more  persons, 
of  known  integrity  and  learning,  as  commissioners  for  each  one 
of  the  States  and  Territories  of  the  Union,  who  shall  reside 
therein,  and  whose  duty  it  shall  be  to  take  depositions  in  virtue 
of  any  commissions  that  may  be  directed  to  them  by  the  courts 
of  this  State. 

§  2.  Said  Commissioners,  in  executing  the  aforesaid 
commissions,  shall  conform  in  all  respects  to  the  legislation  of 
this  State  in  reference  thereto,  and  shall  sign  every  verbal  pro- 
cess of  depositions  taken  by  them,  and  affix  thereto  their  seal  of 
office  bearing  the  impress  of  their  name,  official  capacity  and 
the  name  of  the  State  or  Territory  within  the  jurisdiction  of 
which  they  shall  be  authorized  to  act. 

§  3.  All  American  ministers  plenijiotentiary,  charges 
d'aJBfaires,  consuls  general,  consuls,  vice-consuls  and  com- 
mercial agents,  in  any  foreign  country,  are  authorized  to  act, 


188  OF    THE    AMENDMENTS,    ETC. 

as  commissioners  under  this  act,  and  empowered  to  use  their 
respective  seals  of  office  instead  of  the  commissionei-'s  seal  here- 
in-before  described. 

§  4.  The  duphcate  original  of  the  signature  and  seal  of  office 
of  each  commissioner  appointed  in  the  different  States  or  Ter- 
ritories of  the  Union  shall  be  deposited  in  the  office  of  the  Se- 
cretary of  State  of  Louisiana. 

Stat.  20th  March,  1839,  p.  1G8.— §  17.  Commissions  to 
take  testimony  may  issue  at  any  time  after  the  service  of 
petition  and  citation,  and  whenever  a  commission  to  take  tes- 
timony shall  have  been  returned,  the  party  intending  to  use 
the  depositions  taken  under  the  same,  may,  on  filing  the  same 
in  the  clerk's  office,  file  a  notice  or  take  a  nde  which  must  be 
seiTcd  on  the  opposite  party  or  his  counsel,  to  show  cause  why 
the  same  should  not  be  used  as  evidence  in  the  cause ;  where- 
uj)on  the  party  on  whom  the  rule  is  taken  shall  be  bound  to 
urge  any  objections,  if  any  he  have,  to  the  admission  in  evi- 
dence of  said  depositions  founded  on  any  irregularity  in  the 
execution  of  said  commission,  and  if  he  fail  so  to  do  before  the 
cause  is  called  up  to  trial  on  its  merits,  all  such  objections  shall 
be  considered  as  waived  ;  Provided  that  no  objections  to  the 
deposition,  except  such  as  are  founded  on  irregularity  in  exe- 
cuting the  commission,  shall  be  decided  on  in  such  rule. 

Stat.  24th  March,  1840,  j).  80.— §  1.  In  addition  to  the 
power  and  duty  confei-rcd  by  the  first  section  of  the  act  to 
wliicli  this  is  a  supplement,  the  conniiisssioners  now  appointed 
or  who  may  be  appointed  are  authorized  and  empowered  to 
take  the  acknowledgment  and  proof  of  any  deed,  mortgage  or 
conveyance  of  any  lands,  tenements,  slaves,  or  real  property 
lying  and  being  in  the  State  of  Louisiana,  and  to  take  the  ac- 
knowledgment and  proof  of  the  execution  of  any  instrument  of 
writing  for  the  sale,  transfer  or  assignment  of  any  property 
movable  or  immovable,  and  of  rights  and  debts  ;  and  also  of 
any  power  of  attorney  or  other  -wTiting,  to  be  used  or  proved  in 
this  State  before  any  court  of  justice  or  public  officer,  and  to 


OF    THE    AMENDMENTS,    ETC.  189 

administer  an  oath  or  affirmation  for  like  purposes  to  any  per- 
son desirous  to  make  the  same. 

§  2.  The  power  and  authority  of  the  commissioner,  except 
in  taking  testimony  under  a  commission,  shall  extend  only  to 
such  cases,  in  which  the  party  or  person  making  the  acknow- 
ledgment or  proof,  oath  or  affirmation,  shall  reside  within 
the  State  or  Territory  in  which  the  commissioner  resides  and  for 
which  he  has  been  appointed. 

§  3.  The  commissioners  are  authorized  and  empowered  to 
authenticate  and  attest  the  signature,  official  capacity  and  offi- 
cial acts  of  any  judge,  justice  of  the  peace,  or  other  public 
officer,  holding  a  commission  or  acting  under  the  authority  of 
the  State  or  Territory,  in  which  the  commissioner  shall  reside 
and  for  which  he  shall  have  been  appointed. 

§  4.  Every  such  acknowledgment  or  proof  of  any  deed,  con- 
veyance, mortgage,  sale,  transfer  or  assignment,  oath  or  affir- 
mation, taken  or  made  before  such  commissioner,  and  every 
attestation  or  authentication  made  by  such  commission '^r  when 
duly  certified  by  him  in  the  manner  prescribed  by  the  second 
section  of  the  act  to  which  this  is  a  supplement,  shall  be  good 
and  available  in  law  and  shall  be  received  as  proof  as  if  taken 
or  made  before  a  competent  officer  of  this  State. 

3  R.  13;  4  R.  152;  See  5  L.  295. 

Art.  440. — If  one  state,  under  oath,  in  a  petition,  to  a 
competent  court,  that  he  has  reason  to  apprehend  that  a  per- 
son named  in  the  said  petition,  intends  to  institute  a  suit  against 
him,  for  a  cause  of  action  therein  set  forth  ;  and  that  he  fears 
that,  previous  to  the  institution  of  such  suit,  a  wdtness,  whose 
evidence  is  necessary  to  his  defence,  may  die  or  depart ;  in  such 
case,  the  court  may  direct  the  testimony  of  such  witness  to  be 
taken,  either  before  them,  or  before  any  judge  or  justice  of  the 
peace,  whom  they  may  appoint  for  that  purpose,  after  written 
notice  having  been  duly  served  on  the  adverse  party,  or  if  ab- 
sent, by  posting  it  up  in  the  clerk's  office,  and  the  testimony  so 
taken  shall  be  evidence  on  the  trial,  should  the  witness  exam- 
ined be  dead  or  absent. 


190  OF    EXPERTS,    AUDITORS   OF    ACCOUNTS, 

Sec.  III. — Of  Expei-ts,  Auditors  of  Accounts,  and  Judicial 

Arbitrators. 

Art.  441. — Persons  versed  in  the  knowledge,  either  of  a 
science,  an  art,  or  a  profession,  selected  in  order  to  g;ive  their 
opinion,  on  some  point  or  question,  on  which  the  decision  of  a 
cause  depends,  are  termed  experts. 

2  N.  S.  1 ;  1  L.  266 ;  6  R.  494. 

Art.  442. — Experts  may  be  appointed,  whenever  the  court 
deem  them  necessary,  in  order  to  obtain  information,  or  at  the 
request  of  both  parties  to  the  suit. 

3N.  S.  534;  4  N.  S  297;  11  L.  314;  16  L.  556;  19  L.  242;  6R.508;  5  A.  191 

post,  458,  1005. 

Art.  443. — In  causes  which  reqmre  the  investigation  of  long 
and  intricate  accounts,  the  court  may  appoint  auditors  to  ex- 
amine such  accounts,  and  who  shall  state  the  same  in  their 
report  to  the  court. 

See  3  X.  S.  534. 

Art.  444. — When  both  parties  to  a  suit  pray  that  their 
disj)ute  may  be  submitted  to  the  decision  of  judicial  arbitrators, 
to  be  mutually  appointed  by  such  parties,  the  judge  shall  direct 
the  cause  to  be  referred  to  such  arbitrators  as  the  parties  have 
selected  to  decide  between  them,  either  as  arbitrators,  or  as 
amicable  compounders,  according  as  the  parties  may  have  de- 
termined in  their  submission  ;  which  submission  must  be  fully 
spread  on  the  records  of  the  court,  as  the  rule  which  must  go- 
vern the  arbitrators  in  rendering  their  award. 

7  L.  204;  10  L.  200  ;  post,  459,  460,  475. 

Art.  445. — The  court  cannot,  ex  officio,  or  nt  the  request 
of  only  one  of  the  parties,  refer  a  cause  to  the  decision  of  arbi- 
trators, without  the  consent  of  the  other  party. 

C.  C.  3084,  3085. 

Art.  446. — When  either  experts,  auditors  of  accounts,  or 
judicial  arbitrators  are  to  be  appointed,  each  party  shaU  name 
one,  and  a  tliird  shall  be  appointed  by  the  court,  to  act  as  um- 
pu'e,  in  case  the  two  should  not  agree. 


AND    JUDICIAL    ARBITRATORS.  191 

If  the  parties,  or  either  of  them,  neglect  or  reftise  to  appoint, 
the  judge  shall  name  all  three. 

If  there  be  several  plaintiffs  or  defendants,  or  other  parties 
in  the  cause,  all  the  parties  haAang  the  same  interest  shall 
name  together  one  expert,  auditor,  or  arbitrator,  as  3he  case 
may  be. 

Art.  447.^ — The  parties  may  agree,  that  only  one  expert, 
auditor,  or  arbitrator,  shall  be  appointed  in  the  cause  ;  and  if 
they  agree  in  their  choice,  the  court  shall  appoint  the  person, 
mutually  designated  by  them,  or  in  case  they  cannot  agree  in 
the  choice,  nominate  one  ex  officio. 

Art.  448. — Experts,  auditors,  or  judicial  arbitrators,  so  no- 
minated, must  be  notified  of  their  appointment  by  either  of  the 
parties,  who  shall  deliver  to  them  a  copy  of  the  order  of  the 
court.  They  must,  at  the  request  of  such  party,  take  an  oath 
before  any  judge  or  justice  of  the  peace,  to  perform  faithfully 
their  functions  ;  this  oath  must  be  taken  in  writing,  at  the 
foot  of  the  copy  of  the  order  of  the  court.  It  must  be  annexed 
to  the  report  w^hich  such  experts,  or  auditors,  shall  make  in 
the  cause,  or  to  the  award  wliich  such  arbitrators  may  render. 

C.  C.  3078  ;  post,  7Y0  ;  2  N.  S.  5  ;  15  L.  425. 

Art.  449. — Persons  appointed  as  experts,  auditors,  or  ar- 
bitrators, if  they  refuse  to  act  as  such,  must  immediately  noti- 
fy their  refusal  to  the  court,  in  order  that  their  place  may  be 
filled  by  another  ajipointment,  at  the  request  of  either  of  the 
parties. 

Art.  450. — After  experts,  auditors,  or  judicial  arbitrators 
have  accepted  their  nomination,  and  taken  the  oath,  as  above 
provided,  they  shall  not  be  allowed  to  resign  their  appoint- 
ment, without  adducing  for  so  doing,  such  cause  as  will  be 
satisfactory  to  the  court. 

After  the  documents  in  the  cause  have  been  placed  in  their 
hands,  they  shall,  at  the  request  of  either  of  the  parties,  give 
to  the  adverse  party  at  least  three  days  previous  notice  of  the 
time  and  place  at  wliich  they  intend  to  commence  their  pro- 
ceedings, in  order  that  such  party  may  attend. 

1.3  L.  402 ;  12  L.  455  ;  C.  C.  ?080. 


192  OF    EXPERTS,    AUDITORS    OF    ACCOUNTS, 

Art.  451. — The  party  wisliing  to  produce  witnesses  before 
the  experts,  auditors,  or  arbitrators,  appointed  as  above  pre- 
scribed, shall  obtain  summons  to  that  effect  from  tlie  clerk  of 
the  court  where  the  suit  is  i)ending  ;  and  if  any  witness  thus 
summoned,  refuse  to  obey  the  summons,  he  may  be  punished 
by  the  court,  on  motion  of  the  i)arty  comi)laining  of  his  dis- 
obedience, in  the  same  manner  as  if  he  had  refused  to  appear 
when  summoned  to  attend  at  the  trial  of  a  suit. 

C.  C.  3082;  ante,  135;  6  R.  508. 

Art.  452. — If  experts,  auditors,  or  judicial  arbitrators, 
after  having  accepted  the  functions  delegated  to  them  by  the 
court,  foil  to  execute  their  mandate,  within  the  delay  fixed  by 
the  order  of  the  court  m^minating  them,  or  within  the  further 
delay  which  the  court  may  grant,  in  case  it  has  been  found 
impossible  to  conclude  the  business  witliin  the  first  delay,  the 
court  may  sentence  them  to  pay  all  the  costs  which  their  ne- 
glect may  have  occasioned,  and  such  damage  as  the  parties 
may  have  sustained  from  the  same. 

Ante,  442;  C.  C.  3072,  3090,  3091 ;  5  N.  S.  556;  1  A.  380. 

Art.  453. — As  soon  as  the  experts,  auditors  of  accounts,  or 
judicial  arbitrators,  have  accomplished  their  mandate,  they 
must  draw  up  their  report,  or  award,  as  the  case  may  be,  and 
direct  the  same  to  the  clerk  of  the  court  who  nominated  them, 
in  order  that  either  of  the  parties  may  have  the  same  homolo- 
gated. 

C  R.  494. 

Art.  454. — Such  reports  or  awards,  must  be  signed  by  the 
experts,  auditors,  or  arbitrators  named  ;  and  if  any  one  of 
them  refuse  to  sign,  that  circumstance  must  be  stated  at  the 
foot  of  the  report  or  award. 

C.  C.  8093. 

Art.  455. — Auditors  of  accounts  must  make  their  report, 
by  establishing  the  respective  accounts  of  the  parties,  with 
Bufhcicnt  precision  and  minuteness  to  enable  the  court  to  judge 


AND    JUDICIAL    AKBITRATORS.  193 

"whether  they  acted  properly  in  rejecting,  or  in  allowing,  the 
articles  in  the  accounts. 

11  L.  314;   16  L.  358. 

Art.  456. — After  the  experts,  auditors,  or  arbitrators,  have 
sent  their  report  or  award  to  the  clerk  of  the  court  by  which 
they  were  appointed,  the  party  wishing  to  avail  liimself  of  the 
same,  may,  on  motion,  call  upon  the  adverse  party  to  show 
cause  within  ten  days  after  the  notice  of  such  motion  shall 
have  been  served  on  him^  why  such  report  or  award  should 
not  be  homologated. 

C.  C.  3096 ;  3  L.  78 ;  6  R.  494 ;  see  5  N.  S.  557. 

Art.  457. — The  adverse  party,  after  being  thus  notified, 
may,  within  ten  days,  oppose  the  homologation,  by  delivering 
to  the  clerk  a  written  statement  of  the  grounds  on  which  his 
opposition  rests.  The  court  shall  decide  summarily  on  their 
merits. 

Post,  756  ;  4  N".  S.  473 ;  5  N.  S.  557  ;  12  E.  101. 

Art.  458. — The  court  is  not  bound  to  follow  the  opinion  of 
the  experts  in  their  decision.  They  may  coiTCct  any  error  in 
the  reports  of  auditors  of  accounts,  or  they  may,  if  they  deem 
it  necessary,  order  another  report  to  be  made  by  the  experts, 
or  another  examination  of  accounts  by  the  auditors. 

6  R.  608  ;  12  R.  101 ;  1  A.  380 ;  see  ante,  442. 

Art.  459. — As  regards  the  awards  of  arbitrators,  the 
court  may  rectify  the  errors  they  contain,  even  though  the 
parties  had  agreed  that  such  award  should  be  made  the  judg- 
ment of  the  court,  unless  the  same  have  been  rendered  by 
amicable  compounders. 

•  C.  C.  3096 ;  7  L.  476. 

Art.  460. — But  if,  from  the  submission  entered  into  by 
the  parties,  it  appears  that  they  intended  to  give  to  the  arbi- 
trators power  to  act  as  amicable  compounders,  the  court  can- 
not revise  the  award.  It  must  be  homologated  as  it  stands, 
in  order  that  it  may  have  the  effect  of  a  definitive  judgment. 

s  L.  487. 
13 


194  OF    SETTING   CAUSES    FOR   TRIAL,    ETC. 

Art.  461. — When  the  homologation  of  the  report  of  ex- 
perts or  auditors,  or  of  the  award  of  arbitrators,  is  opposed 
as  above  provided,  the  parties  may  produce  testimony,  and 
even  examine  the  experts,  auditors,  or  arbitrators,  as  to  what 
passed  before  them. 

Anto,  442,  458  ;  6  R.  508. 

Art.  462. — Experts,  auditors  of  accounts,  and  arbitrators, 
named  in  pursuance  of  the  provisions  enacted  in  this  section, 
shall  be  entitled  to  receive  such  compensation  for  their  services, 
as  the  court  may  deteiinine,  according  to  the  nature  of  the 
cause,  and  such  compensation  shall  be  included  in  the  taxed 
costs,  and  shall  be  paid  by  the  party  cast. 

Post,  552  ;  4  R.  340. 

Sec,  4. — Of  setting  causes  for  trial,  of  continuance^  and  of 
the  proceedings  preparatory  to  trial  and  judgment. 

Art.  463. — As  soon  as  the  answer  has  been  filed  in  a  suit, 
the  clerk  shall  set  down  the  cause  on  the  docket  of  the  court, 
in  order  that  it  be  called  in  its  turn,  and  a  day  fixed  for  its 
trial. 

Stat.  25t7i  March,  1840,  p.  82.— §  3.  Judges  of  all  the 
courts  in  this  State  shall  have  the  right  to  regulate  by  a  rule 
of  court  the  mode  of  setting  causes  for  trial  in  tlieir  resjjec- 
tive  courts, 

Stat.  10th  February,  1841,  ]).  17.— §  16.  The  mode  of  fix- 
ing of  causes  for  trial  in  the  district,  parish  and  commercial 
courts,  sitting  in  New  Orleans,  shall  be  uniform,  and  the 
judges  of  said  courts  shall  no  longer  have  the  power  to  change 
the  manner  of  setting  cases  for  trial.  As  soon  as  the  issue  is 
joined,  the  clerk  shall  place  the  case  on  the  issue  docket :  and 
in  every  week  the  suits  standing  in  this  docket  shall  be  called 
by  the  clerk  to  be  fixed  for  trial,  when  either  party  may  direct 
the  case  to  be  fixed  for  trial ;  a  sufficient  number  of  cases 
shall  be  fixed  at  each  calling  to  be  tried  during  one  week  ;  and 
if  any  case  fixed  for  a  particular  day  is  not  tried  for  want  of 


OF    SETTING   CAUSES    FOR    TRIAL,    ETC.  195 

time  or  for  any  other  reason  not  ini^mtable  to  the  plaintiff,  it 
shall  be  called  again  by  preference  at  the  next  fixing  of  causes  ; 
the  exceptions,  motions  and  summary  cases  may  be  fixed  in 
such  a  manner  as  the  judges  by  their  rules  of  court  may  es- 
tablish ;  provided  that  all  witnesses  shall  be  examined  in  pre- 
sence of  the  judge  in  open  court,  unless  their  testimony  is 
taken  under  commission  or  consent  of  parties  :  nothing  in 
this  section  shall  be  so  construed  as  to  interfere  with  the  right 
of  being  fixed  by  preference  now  granted  by  law  to  certain 
causes. 

Stat.  7th  3farch,  1834,  p.  60. — §  1,  Any  suit  pending  in 
any  court  of  this  State  in  which  the  State  is  a  party,  shall 
have  preference  in  the  order  of  trial,  over  any  other  suit  or 
suits  pending  in  said  court. 

Stat.  1846,  p.  99.— §  2.  There  shall  be  four  terms  of  court 
held  in  each  parish,  in  every  year,  at  such  periods  as  shall  be 
fixed  by  law,  but  juries  shall  be  summoned  at  only  two  of 
such  terms  ;  and  there  shall  be  kept  two  civil  dockets,  one  of 
cases  relating  to  successions  and  probate  business,  and  the 
other  of  all  other  civil  cases,  and  at  the  terms  of  court, 
to  which  no  jimes  shall  be  summoned,  the  docket  of  succes- 
Bion  and  probate  business  shall  be  taken  up  by  preference. 

Post,  476 ;  6  N.  S.  635;  3  R.  372 ;  8  R.  254 ;  12  R.  99. 

Art.  464. — When  a  cause  is  called,  the  party,  who  has 
not  been  able  to  procure  the  necessary  evidence,  shall  be  enti- 
tled to  a  continuance,  on  proving,  either  that  he  has  not  had 
sufiicient  time  to  get  his  proof,  or  has  been  prevented  from  do- 
ing so  by  some  unforeseen  cause. 

1  N.  S.  245  ;  5  N.  S.  233  ;  8  N.  S.  513  ;  2  L.  234,  260,  306 ;  3  L.  448 ;  4  L 
318  ;^  9  L.  276;  10  L.  393,  396;  16  L.  677. 

Art.  465. — Even  on  the  day  fixed  for  the  trial  of  the  suit, 
a^party  may  obtain  a  continuance,  if  one  of  the  witnesses 
summoned  in  the  cause,  has  gone  away,  and  the  party  apply- 
ing for  continuance  swear  that  he  did  not  know  that  such  wit- 
ness intended  to  depart,  or  could  not  prevent  his  departure, 


196  OF    SETTING    CAUSES    FOR    TRIAL,    ETC, 

and  that  his  testimony  is  materiul  for  establishing  liis  clainL; 
or  for  supporting  his  defence. 

5  N.  S.  664  ;  6  N.  S.  537  ;  8  L.  108 ,  448  ;  8  L.  90. 

Art.  466. — When  one  of  the  parties  to  a  suit  prays  for 
continuance,  on  account  of  the  absence  of  one,  or  several  of 
his  witnesses,  the  adverse  party  may  require  him  to  disclose,  on 
oath,  what  facts  he  intends  to  prove  by  such  witnesses  ;  and 
if  such  party  admit  those  facts,  tlie  court  shall  proceed  to  the 
trial,  as  if  such  witnesses  had  been  examined. 

Stat.  20th  March,  1839,  p.  164.— §  9.  That  article  four 
hundred  and  sixty-six  of  said  code  be  so  amended,  that  the 
party  who  apphes  for  a  continuance,  shall  not  be  bound  to  ad- 
mit the  facts  which  the  adverse  party  may  have  sworn  he  ex- 
pected to  prove  by  such  witness,  but  merely,  that  such  witness 
would,  if  present,  swear  to  such  facts. 

Stat.  28th  March,  1840,  p.  124.— §  5.  That  section  ninth 
of  the  act  to  amend  the  Code  of  Practice,  approved  March 
20th,  1839,  be  so  amended  that  the  word  "applies"  be  strick- 
en out  and  the  word  "  opposes  "  be  inserted  in  lieu  thereof. 

8  L.  37. 

Art.  467. — The  sickness  of  one  of  the  witnesses  summon- 
ed in  the  cause,  is  not  a  sufficient  cause  of  continuance,  if 
such  witness  live  in  the  place,  and  is  in  a  situation  to  answer 
interrogatories  ;  in  such  case  the  party  insisting  for  trial  may 
require  that  his  deposition  be  taken  by  a  justice  of  the  peace, 
in  the  presence  of  the  adverse  party,  or  of  his  advocate  ;  or 
after  having  notified  him,  or  his  advocate,  to  attend  at  the 

examination. 

Ante,  430. 

Art.  468. — The  court  have  besides  a  discretionary  power, 
to  grant  continuance,  whenever  the  cause  alleged  by  the  party 
applying  for  it,  appears  sufficient  to  justify  the  same. 

5  N.  S.  233,  639;  6  N.  S.  335 ;  7  N.  S.  393 ;  1  L.  115 ;  2  L.  297. 

Art,  469. — When  the  cause  has  been  fixed  for  trial,  each 
party  shall  obtain  from  the  clerk  of  the  court  where  the  cause 


OF    SETTING    CAUSES    FOR    TRIAL,    ETC.  197 

is  pending,  summons  for  the  witnesses  intended  to  be  produ- 
ced, in  order  to  compel  their  attendance  on  the  day  fixed  for 
the  trial. 

Stat.  20th  March,  1839,  p.  172.— §  25.  Article  four  hun- 
dred and  sixty-nine  of  the  Code  of  Practice  shall  be  so  amended 
that  out  of  the  city  of  New  Orleans,  each  party  may  obtain 
from  the  clerk  of  the  court,  summons  for  mtnesses  before  the 
case  has  been  fixed  for  trial. 

Ante,  424. 

Art.  470. — If  on  the  day  fixed  for  the  trial,  one  of  the  par- 
ties has  neglected  to  have  his  witnesses  summoned,  in  the  man- 
ner prescribed  in  the  preceding  article,  he  cannot  on  that  ac- 
count obtain  a  continuance. 

Ante,  465. 

Art.  471. — But  if  a  witness,  duly  summoned,  do  not  ap- 
pear, the  party  who  has  had  him  summoned,  may,  on  showing, 
either  that  the  summons  was  served  on  such  witness,  or  that 
he  could  not  be  found,  have  the  suit  continued,  or  the  trial  put 
off",  until  such  witness  has  been  attached  and  brought  before 
the  court. 

Ante,  135  ;  5  N.  S.  151 ;  16  L.  57Y. 

Art.  472. — Every  witness  attending  in  obedience  to  a  sum- 
mons of  the  court,  shall  be  entitled  to  receive  one  dollar  for 
everj^  twenty  miles  which  he  has  to  travel  in  going  to,  and  re- 
turning from,  the  place  where  the  court  is  held,  besides  one 
dollar  a  day  for  every  day  he  shall  be  detained  previous  to  giv- 
ing his  testimony  in  the  cause.  Such  costs  shall  be  taxed  with 
the  taxed  fees,  to  be  paid  by  the  party  cast,  provided  the  num- 
ber of  witnesses  summoned  in  a  suit,  by  each  of  the  parties, 
does  not  exceed  six  on  each  side.  Each  of  the  parties  must 
pay  the  witnesses  summoned  by  them  respectively,  beyond  that 
number. 

Art.  473. — If  one  of  the  parties  wish  to  obtain  books,  pa- 
pers, or  other  documents,  in  the  possession  of  the  adverse 
party,  the  court  shall  order,  on  motion  of  the  jiarty  api)]ying 


198      OF    THE   TRIAL   OR    DISCONTINUANCE   0/    THE    SUIT. 

for  the  same,  that  such  books,  papers,  or  documents  be  brought 
into  court,  and  produced  on  the  day  fixed  for  the  trial  of  the 
cause.  The  order  must  describe  such  books,  papers,  or  docu- 
ments. 

6  N.  S.  167  ;  4  L.  465 ;  3  R.  227 ;  8  R.  6 ;  2  A.  158 ;  ante,  140. 

Art.  474. — The  same  rales  shall  govern  in  cases  where  a 
third  person,  not  a  party  to  the  suit,  has  in  his  possession,  any 
act,  paper,  documents,  or  books,  material  to  the  cause,  which 
one  of  the  parties  ^\^shcs  to  have  brought  into  court. 

But  in  such  cases,  the  order  of  court  requu'ing  the  produc- 
tion of  such  papers,  books,  or  documents,  must  be  served  on 
the  party,  who  is  called  upon  to  produce  the  same,  and  a  rea- 
sonable time  allowed  to  enable  such  party  to  search  for,  and 
bring  the  same  into  court. 

Ante,  141. 

Art.  475. — If,  in  the  course  of  the  suit,  either  party  dis- 
covers that  his  interests  require  the  introduction  of  titles  and 
papers  in  the  possession  of  the  adverse  party,  or  of  a  third  per- 
son, the  court  shall,  on  application,  order  the  production  of 
such  books  or  papers.  Provided,  however,  that  in  no  case 
shall  a  person  be  compelled  to  produce  papers  that  would  sub- 
ject him  to  a  criminal  prosecution  under  the  penal  laws  of  the 
State. 

Ante,  444;  4  N.  S.  21. 


CHAPTER  V. 

OF  TRIAL  AND  JUDGMENT. 

Seo.  I. — Of  the  Trial  or  Discontinuance  of  the  Suit. 

Art.  476. — On  the  day  fixed  for  trial,  the  plaintiff  shall 
open  the  cause,  and  produce  his  witnesses  and  the  evidence  in 
support  of  liis  demand. 

8  L.  565 ;  12  L.  108 ;  3  R.  345. 

Art.  477. — When  the  plaintiff  has  closed  his  evidence ,  the 


OF    THE    TRIAL    OR.  DISCONTINUANCE    OF   THE    SUIT.       199 

defendant  shall  bring  his  witnesses,  and  produce  the  proof  in 
support  of  his  defence  ;  the  plaintiff  may  then  bring  additional 
witnesses,  or  his  former  witnesses,  to  rebut  the  testimony 
adduced  by  the  defendant,  or  to  lessen  the  weight  of  such  tes- 
timony. 

5  L.  451 ;  3  R.  345. 

Art.  478. — Previous  to  their  being  examined,  the  \ntnesses 
in  a  cause  must  be  sworn,  on  the  Bible,  in  open  court,  and  in  the 
presence  of  the  parties,  to  speak  the  truth,  all  the  truth,  and 
nothing  but  the  truth,  in  the  testimony  which  they  shall  give 
in  the  cause. 

4  R.  278;  ante,  349. 

Art.  479. — If  the  religious  opinions  of  a  witness  are  op- 
posed to  his  taking  an  oath,  his  affirmation  of  the  truth  of  his 
testimony  shall  suffice. 

Art.  480. — On  the  witness  coming  to  be  sworn,  or  to  af- 
firm, the  party,  who  objects  to  such  witness  being  examined, 
must  state  his  objections,  previous  to  his  having  been  sworn. 

Art.  481. — If  the  objections  be  sustained  by  the  court, 
the  witness  shall  retire  unheard  ;  if  rejected,  he  shall  be  sworn 
and  examined  :  but  in  either  case,  the  party  who  complains 
of  the  decision  of  the  court,  may  except  to  the  same,  and  file 
his  exception. 

GL.  242,677;  7  L.  85 ;  8  L.  166;  9  L.  114. 

Art.  482. — If  the  witness  be  objected  to  on  the  ground 
of  his  having  a  direct,  or  indirect  interest  in  the  event  of  the 
suit,  the  party  maldng  the  objections,  may  examine  such  wit- 
ness on  oath,  as  to  the  existence  of  such  interest,  and  the  wit- 
ness must  be  sworn  to  answer  the  truth  on  the  questions 
which  shall  be  put  to  him  on  that  head. 

1  L.  207,  8  L.  120.  / 

Art.  483. — The  parties  may  likewise  object  to  the  intro- 
duction of  documents,  or  other  written  proofs  offered  in  evi- 
dence, when  they  contend  that  the  same  ought  not  to  be  ad- 
mitted as  legal  proof;  the  court  shall  decide  on  such  objec- 


200      OF   THE   TRIAL    OR    DISCONTINUANCE    OF   THE    SUIT. 

tions  as  with  regard  to  the  admission  of  witnesses ;  but  the 
parties  may  except  to  their  decision. 

Art.  484. — After  all  incidental  questions  shall  have  becE 
decided,  and  both  parties  have  jiroduced  tlieir  respective  evi- 
dence, the  argument  commences  ;  no  ^vitnesses  then  can  be 
heard,  nor  proof  introduced,  except  with  the  consent  of  all  the 
parties. 

4  N.  S.  129 ;  7  N.  8.  67,  363  ;  10  R.  SO. 

Art.  485. — The  plaintiff  shall  speak  first,  the  defendant 
shall  follow  ;  and  then  the  plaintiff  shall  reply  ;  the  defendant 
may  speak  again,  if  any  new  pohit  of  law  has  been  raised  by 
the  plaintiff  in  reply,  or  he  may  comment  on  any  new  author- 
ity not  cited  at  the  opening  of  the  cause  ;  the  plaintiff  may 
again  reply  and  close. 

Post,  515;  5N.  S.  74;  3  R.  345. 

Art.  486. — Advocates  must  plead  their  causes  with  pro- 
priety and  decency  ;  they  must  not  indulge  in  personal  remarks 
against  the  parties,  nor  lose  sight  of  the  respect  due  to  the 
court,  to  the  witnesses,  and  to  the  jury  ;  they  should  neither 
interrupt  the  one  who  speaks,  nor  indulge  in  idle  digressions 
having  no  bearing  on  the  cause, 

Stat.  23d  March,  1828,  p.  159.— §  13.  From  and  afler 
the  passage  of  this  act,  no  cUent  or  other  person  shall  be  held 
liable  or  responsible  for  any  slanderous  or  libellous  words  ut- 
tered by  liis  attorney  at  law,  but  attorneys  at  law  shall  be 
liable  and  responsible  themselves  for  any  slanderous  or  libellous 
words  by  them  uttered,  any  law  to  the  contrary  notwithstand- 
ing. 

6  N.  a  488. 

Art.  487. — If  one  of  the  parties  calls  on  the  court  to  ex- 
press an  oi^inion  on  a  point  of  law,  arising  in  the  cause,  ^uch 
opinion  may  be  excepted  to. 

10  R.  94. 

/ 

Art.  488. — The  party  excepting  to  the  opinion  of  the 
court,  must  draw  a  bill  of  excejition,  in  which  the  question  of 


OF    THE   TRIAL    BEFORE    A   JURY.  201 

fact  or  of  la\r,  on  wliich  such  opinion  has  been  demanded,  shall 
be  concisely  set  forth,  as  well  as  the  grounds  of  the  exception 
so  taken. 

2N.  S.  250;4K  S.  72;  7N.  S.  650;  2L.  298;4L.  20;  6  L.  242,380,397,471, 
659;  2  A.  624;  3  A.  443. 

Art.  489. — This  bill  of  exception  must  be  exhibited  to  the 
adverse  party,  who  may  object  to  any  error  in  the  statement 
therein  contained  :  it  shall  then  be  presented  to  the  court, 
who,  after  correcting  it,  if  erroneous,  shall  sign  the  same,  and 
direct  the  clerk  to  file  it  among  the  records  of  the  suit. 

2  A.  624. 

Art.  490. — After  hearing  the  advocates  on  both  sides,  the 
court  may  immediately  pronounce  judgement,  or  take  time  to 
deliberate,  pursuant  to  the  provisions  of  special  laws. 

Post,  642. 

Art.  491. — The  plaintiif  may,  in  every  stage  of  the  suit, 
previous  to  judgment  being  rendered,  discontinue  the  suit,  on 
paying  the  costs. 

Rost>  532 ;  7  M.  490 ;  1  N.  S.  699  ;  5  N.  S.  164,  643  ;  3  L.  458  ;  4  L.  367  ; 
9L.  310;  6R.  354;  9R.240;  3  A.  660. 

Art.  492. — After  discontinuing  the  suit,  the  plaintiff  may 
bring  the  action  anew  ;  provided  he  has  paid  the  costs  of  tho 
first  suit. 

4  R.  193. 

Sec.  II. — Of  the  Trial  he/ore  a  Jury. 

Art.  493. — The  mode  of  selecting  and  summoning  the 
jury  is  established  by  special  laws. 

Art.  494. — The  plaintiff,  who  Avishes  for  a  jury,  must  pray 
for  the  same,  either  in  liis  original  petition,  or  by  a  sujiple- 
mental  petition  which  must  be  presented  before  the  suit  be 
set  down  for  trial. 

Stat.  20th  March,  1839,  p.  172.— §  24.  All  suits  against 
makers  and  indorsers  of  promissory  notes,  drawers,  indorsers 
and  acceptors  of  bills  of  exchange,  and  generally  all  suits 


202  OF  THE  TRIAL  BEFORE  A  JURY 

brought  on  unconditional  obligations  to  pay  a  specific  sum  of 
money,  shall  be  tried  without  a  jury  unless  the  defendant  shall 
make  oath  that  his  signature  to  said  note,  or  other  obligation, 
is  not  genuine  or  that  he  expects  to  prove  that  the  same  had 
been  obtained  througli  fraud  or  en-or  or  of  want  or  ftiilurc  of 
consideration,  or  in  cases  when  the  defendant  in  his  answer 
may  set  up  a  plea  of  compensation  or  reconvention  and  make 
oath  to  the  truth  of  all  the  allegations  in  said  plea  or  answer. 

4N.S.636;  6N.S.2,  265;  llL.  157,  162;  2  R.274;  3  A.  150;  4  A.  146. 

Art.  495. — The  defendant,  in  order  to  avail  himself  of  the 
same  privilege,  must  pray  for  a  jury  in  his  answer,  or  previous 
to  the  suit  being  set  down  for  trial. 

Nevertheless,  if  in  his  answer  the  defendant  have  only  de- 
cHned  the  jurisdiction  of  the  court,  without  answering  to  the  . 
merits,  he  may,  if  the  plea  be  overruled,  pray  for  a  jury  in  his 
answer  to  the  merits. 

1  N.  S.  230 ;  8  L.  254  ;'  2  A.  651 ;  3  A.  196. 

Art.  496. — When  a  cause  is  to  be  tried  by  a  jury,  the 
name  of  each  of  the  jurymen  summoned  to  try  it,  shall  be 
written  separately  on  tickets,  which  shall  be  put.  in  a  box, 
destined  for  tliis  purpose,  from  which  they  shall  be  drawn  by 
the  clerk  in  the  manner  prescribed  in  the  following  article. 

Stat.  27th  February,  1826,  p.  46. — §  5.  As  soon  as  any 
number  of  the  jurymen,  whose  names  shall  be  on  the  list  made 
out  for  the  term,  shall  have  met  together,  the  court  nray  pro- 
ceed to  cause  the  jurymen  who  are  present  to  be  called  and 
sworn,  without  complying  with  the  formality  of  drawing  a 
jury  iov  each  case  as  prescribed  by  article  469  of  the  Code  of 
Practice. 

Art.  497. — As  soon  as  not  less  than  twenty  jurymen  shall 
be  present,  the  court  shall  order  the  cause  to  be  called,  and 
the  clerk  shall  draw  out  of  the  box,  one  by  one,  the  tickets  on 
which  the  names  of  the  jurymen  have  been  written,  and  then 
he  shall  form  a  list  of  them,  in  the  order  in  which  they  shall 
have  been  di'awn. 


OF    THE    TRIAL    BEFORE    A   JURY.  203 

Art.  498. — The  formality  of  drawing  the  names  of  jury- 
men, as  prescribed  in  the  preceding  article,'  shall  be  repeated 
for  each  cause  to  be  tried,  unless  the  parties  shall  consent  to 
call  the  names  of  the  jurymen  in  any  other  manner  they 
choose. 

Art.  499. — When  the  Hst  of  jmymen  present  shall  have 
been  formed  in  the  manner  above  specified,  or  when  the  par- 
ties shall  have  agreed  to  call  them  in  any  other  manner,  the 
jurymen  shall  be  called  three  at  a  time  to  be  sworn  ;  the  par- 
ties must  then  make  their  challenges  to  the  court,  if  they 
have  any  cause  therefor,  either  to  the  array  or  to  the  poll. 

Art.  500. — Challenges  may  be  made  to  the  array,  or  to 
the  polls. 

Art.  501. — A  challenge  to  the  array  may  be  made  for  any 
irregularity  in  the  manner  of  summoning  the  jurymen,  or  of 
drawing  their  names. 

8  N.  S.  426. 

Art.  502. — Challenges  to  the  polls  are  divided  into  two 
kinds,  one  founded  on  legal  and  sufficient  reasons,  another 
which  depends  on  the  will  of  the  parties  without  then'  being 
obliged  to  make  known  their  motives  for  so  doing. 

Art.  503. — Challenges  to  the  polls,  the  causes  of  which 
the  parties  are  bound  to  declare  and  prove,  are  those  which 
are  founded  : 

1.  Upon  the  jur}Tiian's  filling  some  public  employment 
which  exempts  him  from  serving  in  this  capacity ; 

2.  Upon  his  not  having  the  qualifications  requii-cd  by 
law ; 

3.  Upon  his  being  suspected  of  some  partiaHty  or  favor 
for  one  of  the  parties  ; 

4.  Upon  liis  having  been  convicted  of  some  crime  or  mis- 
demeanor, which  legally  renders  him  incapable  of  acting  as  a 
juryman. 

Art.  504. — The  causes  of  challenge  which  have  been  men- 
tioned in  the  preceding  article,  are  to  be  understood  in  the 
sense,  and  under  the  modifications  hereafter  mentioned. 


204  OF    THE    TRIAL    BEFORE    A   JURY. 

Art.  505. — A  juryman  may  be  chaUenged  or  excuse  him- 
self, if  he  fills  any  public  functions,  which  by  their  nature, 
or  the  provisions  of  law,  exempt  him  from  sers'ing  as  a  jury- 
man. 

Art.  506. — A  juryman  may  be  challenged,  because  he  does 
not  possess  the  qualifications  required  by  law. 

These  quaUfications  arc,  that  the  juryman  must  be  a  free 
white  man,  above  the  age  of  twenty-one  years ;  that  he  be  a 
housekeeper,  and  that  he  have  resided  at  least  one  year  in  this 
State,  and  six  months  in  the  parish. 

2  R.  266. 

Art,  507. — A  juryman  may  be  challenged,  as  suspected  of 
partiality  in  the  cause  : 

1.  If  he  be  a  relation  of,  or  allied  to,  one  of  the  parties, 
or  his  or  her  master,  domestic,  counsellor,  £^^torney,  agent  or 
partner  ; 

2.  If  he  have  an  interest,  direct,  or  indirect,  in  the  cause ; 

3.  If  he  have  already  served  as  juryman  in  the  same  suit ; 

4.  If  he  have  formed  an  opinion  upon  the  cause  before 
coming  into  court ; 

5.  If  he  have  received  any  bribe  for  giving  his  verdict. 

2  L.  345. 

Art.  508. — A  juryman  may  be  challenged  for  crime  by 
him  committed,  if  he  has  been  convicted  of  any  crune  deemed 
infamous  by  the  penal  laws  of  this  State. 

Art.  509. — The  juryman,  challenged  for  any  one  of  the 
above  mentioned  causes,  may  be  interrogated  under  oath,  con- 
cerning the  truth  of  the  facts  alleged  against  him,  and  he 
must  answer  such  questions,  touching  the  matter,  provided 
that  he  do  not  expose  himself  to  injure  his  reputation,  or  ac- 
cuse himself  of  some  crime  or  misdemeanor. 

Art.  510. — The  judge  shall  pronounce  upon  the  challen- 
ges to  jurymen,  in  the  same  manner  as  upon  those  made  to 
witnesses  ;  and  the  party,  who  may  think  himself  aggrieved 
by  his  decision,  may,  in  like  manner,  take  an  exception  to  his 
opinion. 


OF    THE    TRIAL    BEFORE    A    JURY,  205 

Art.  511. — Besides  the  challenges,  the  causes  of  which 
the  parties  must  declare  and  prove  as  above,  the  plaintiff"  and 
defendant  have  each  the  right  of  challenging  peremptorily  four 
jmymen. 

Art.  512. — "When  there  arc  many  plaintiffs  or  defendants 
n  a  cause,  the  parties  who  are  equally  interested,  will  be 
obliged  to  join,  in  order  to  enjoy  the  right  of  challenging  which 
has  been  mentioned  in  the  preceding  article,  so  that  there  may 
be  no  more  than  four  jurymen  peremptorily  challenged,  on 
each  side. 

Art.  513. — If,  on  account  of  the  challenges,  absence,  or 
sickness  of  some  of  the  jurymen,  or  of  any  other  legal  excuse, 
the  jury  should  not  be  complete,  the  court  shall  order  the 
sheriff'  to  summon  a  certain  number  of  persons  present,  having 
the  legal  qualifications,  in  order  to  complete  it. 

Stat.  8th  March,  1841,  p.  5Q—%  1.  To  amend  the  51Sth 
Article  of  the  Code  of  Practice.  Hereafter  the  district  judge 
of  the  ninth  judicial  district  court  in  cases  where  juries  are 
allowed,  shall  be  authorized  in  any  case,  when  from  any  cause 
whatever,  the  regular  panel  of  jurors  may  be  exhausted,  to 
direct  the  clerk  of  the  court,  in  open  court,  to  put  in  a  box  to 
be  prepared  for  that  purpose,  the  names  of  such  a  number  of 
''  persons  having  the  qualifications  to  serve  as  jurors,  as  he  may 
think  necessary,  not  to  exceed  one  hundred,  and  to  direct  said 
clerk  in  open  court,  to  draw  from  the  said  box  such  a  number 
of  names  as  he  may  deem  necessary,  not  to  exceed  fifty,  and 
that  the  same"  course  may  be  pursued  during  the  same  court, 
as  frequently  as  in  the  opinion  of  the  said  judge,  it  may  be 
necessary,  and  the  said  clerk  shall,  immediately  after  the  said 
drawing,  hand  to  the  sheriff"  or  proper  officer,  a  summons  for 
the  said  jurors,  and  the  said  sheriff  or  officer  shall  immedi- 
ately proceed  to  summon  the  said  jurors,  who  are  hereby  re- 
quired to  obey  the  said  summons,  under  the  penalties  now 
provided  for  the  punishment  of  defaulting  jurors. 

Art.  514. — As  soon  as  a  juryman  shall  have  been  accepted 
by  the  parties,  or  the  challenge  made  to  him  shall  have  been 


206  OF  THE  TRIAL  BEFORE  A  JURY. 

Dvemiled  by  the  court,  he  shall  take  an  oath,  that  he  wiU 
pronounce,  in  a  just  and  impartial  manner,  and  to  the  best  of 
his  judgment,  in  the  case  of  such  a  one  against  such  a  one, 
(naming  tlic  title  of  the  cause)  which  is  about  to  be  submit- 
ted to  him  ;  and  as  soon  as  there  shall  be  twelve  jurymen 
sworn,  the  court  shall  name,  from  amongst  them,  a  foreman, 
who  shall  preside  over  them  and  sign  the  verdict  which  they 
may  render. 

Art.  515. — The  case  shall  be  pleaded  before  the  jury,  in 
the  same  manner  as  before  the  court ;  and  when  the  pleadings 
are  finished,  the  judge  shall  charge  the  jury  on  the  form  of 
giving  their  verdict. 

Stcd.  25th  March,  1831,  p.  114.— §  8.  In  all  cases  aj^peal- 
able  to  the  Supreme  Court,  it  shall  be  the  duty  of  the  judge 
to  deliver  his  charge  to  the  jury  in  writing,  if  the  counsel  of 
either  party  require  the  same. 

5  R.  78. 

Art.  516. — In  this  charge  the  judge  must  limit  himself  to 
giving  the  jury  a  knowledge  of  the  laws  applicable  to  the 
cause  submitted  to  them,  and  he  shall  abstain  from  saying  any 
thing  about  the  facts,  or  even  recapitulating  them,  so  as  to  ex- 
ercise any  influence  on  their  decision,  in  this  respect. 

7  K  S.  136,  249,  508 ;  1  L.  56,  270,  274;  8  L.  108-;  9  L.  257 ;  5  R.  78; 
12  R.  162;  2  A.  1019. 

Art.  517. — If,  when  the  judge  shall  have  finished  liis 
charge  to  the  jury,  one  of  the  parties  believes  that  the  judge 
has  mistaken  the  law,  which  hchas  stated  to  the  jury,  or  in 
the  application  which  lit  has^  made  of  it,  he  may  require  the 
judge  to  give  his  opinion  in  writing,  touching  this  matter,  and 
on  liis  refusal,  he  may  take  an  exception,  in  the  manner  and 
form  heretpfore  ^et  forth.  .  ^ 

->,^^  4  lSb  ;  8  L.  32,  138  ;  ll'L.  $09  ;  5  K  2VN.2  R.  162.      '^ 

Art.  0I8. — Wlienthe  jury  shall  have  retired  into  the  room 
designated  for  this  purpose,  they  shall  deliberate  under  the 
direction  of  their  foreman,  upon  their  verdict,  and  as  soon  as 


OF   THE    TRIAL    BEFORE    A   JURY.  207 

they  shall  haw  agreed  upon  the  manner  of  giving  it,  the  fore- 
man shall  reduce  the  verdict  to  writing,  and  sign  it,  as  it  is 
hereafter  mentioned,  and  give  notice  to  the  court,  if  it  be  still 
in  session,  that  the  jury  are  ready  to  give  their  verdict. 

5  N.  S.  267  ;  9  L.  410  ;  post,  622,  526,  527. 

Art.  519. — The  verdict  may  be  either  general  or  special. 
A  general  verdict  is  that  by  which  the  jury  pronounce  at  the 
same  time  on  the  fact  and  the  law,  either  in  favor  of  plaintiff 
or  defendant. 

A  special  verdict,  is  that  by  which  the  jury  pronounces  on 
the  facts  only,  IcaAdng  to  the  court  the  right  of  giving  judg- 
ment on  these  facts  and  the  law  applicable  to  them. 

6  N.  S.  95,  264;  3  L.  70 ;  6  L.  333,  493,  560,  606;  7  L.  210,  247,  269,  530; 

8  L.  65,  169,  515;  9  L.  19,  16.3,  252,  524;  11  L.  614;  5  R.  162. 

» 

Art.  520. — The  jury  is  always  at  liberty  to  give  a  genei-al 
verdict,  by  pronouncing  on  the  law  and  on  the  fact,  in  the  case 
submitted  to  them. 

Therefore,  the  law  permitting  either  party  to  submit,  spe- 
cially, the  facts  in  the  case,  to  the  jury,  and  so  depriving  them 
of  the  right  of  giving  a  general  verdict  in  the  suit,  is  abro- 
gated. 

8  L.  33  ;  10  L.  81 ;  12  II.  162. 

Art.  521. — But,  should  the  jury  think  proper  to  render  a 
special  verdict  on  the  facts  of  the  cause,  those  facts  which  the 
juiy  shall  have  found,  shall  be  considered  as  true,  and  the 
judge  shall  render  judgment  accordingly,  saving  the  right  of 
granting  a  new  trial,  if  he  believe  that  the  jury  have  given 
their  verdict  contraiy  to  the  evidence. 

5  R.  78. 

Art.  522 — The  form  of  a  general  verdict  consists  in  the 
foreman  indorsing  on  the  back  of  the  i:)etition,  these  words, 
"  verdict  for  the  i)hnntiff  for  so  mjuch,  with  interest,"  if  it  has 
been  prayed  for  ;  or,  "  verdict  for  the  defendant;^"  according  as 
the  verdict  is  for  plaintiff  oi  defendant. 

Ante,  518 ;  13  L.  109  ;  14  L.  343 ;  9  R.  59. 

Art.  523. — The  jury  has  nothing  to  do  >vith  the  costs  in 


208  OF    THE    TRIAL    BEFORE    A    JURY. 

a  general  verdict,  inasmuch  as  it  is  entirely  reserved  for  ihsi 
court  to  pronounce  on  this  subject,  which  is  a  consequence  of 
its  judgment 

Art.  524. — ^Vllen  the  verdict  is  special,  the  foreman 
must  Aviitc  on  the  petition,  or  on  a  separate  sheet  of  paper, 
and  successively,  the  different  facts  wliich  they  find  in  the 
cause. 

5  R.  78. 

Art.  525. — Whether  the  verdict  be  general  or  special,  the 
foreman  must  sign  it,  mentioning  liis  quality. 

8  L.  275. 

Art.  526. — When  the  jury  have  returned  into  court,  in 
order  to  give  in  their  verdict,  the  judge  shall  order  the  clerk  to 
caU  the  jui-j-men,  to  ascertain  that  they  are  all  present ;  and 
if  the  jury  be  aU  present,  the  foreman  shall  hand  the  verdict 
to  the  judge,  who  shall  order  the  clerk  to  read  it,  in  a  loud  and 
intelligible  voice. 

Art.  527. — After  the  reading  of  the  verdict,  he  shall  ask 
the  jury  if  the  verdict  has  been  agreed  to,  and  if  the  foreman 
answer  affirmatively,  he  shall  enter  the  verdict  on  the  records 
of  the  court,  unless  one  of  the  parties  require  that  the  jurors 
be  called,  and  each  of  them  asked  if  he  has  agreed  to  the  ver- 
dict, and  if  it  appear  that  all  the  jurors  have  agreed  to  the 
verdict,  the  same  shall  be  recorded. 

Art.  528. — If,  on  reading  the  verdict,  it  appear  that  there 
is  some  want  of  form  as  to  the  manner  in  which  it  has  been 
drawn,  it  may  be  corrected  at  the  request  of  cither  of  the 
parties,  under  the  direction  of  the  court,  either  in  their  pre- 
sence, or  after  the  jury  shall  have  retired  for  that  puri)ose,  in 
which  case  it  shall  again  be  brought  into  court  after  ha^ing 
been  corrected,  ia  order  to  be  read  and  recorded,  as  above  di- 
rected. 

7  N.  S.  307  ;  5  R.  78  ;  9  R.  69 ;  2  A.  472. 

Art.  529. — If  the  court  intend  adjourning  to  the  next 
day,  previous  to  the  jury  having  brought  in  their  verdict,  they 
may  authorize  them,  after  they  have  agreed  on  their  verdict, 


OF    JUDGMENTS    AND    COSTS.  209 

to  deliver  the  same,  sealed,  to  the  clerk  of  the  court,  in  order 
that  it  be  read  the  following  day,  at  the  opening  of  the 
court. 

In  such  cases,  the  jury  must  attend  in  com-t  to  be  present 
at  the  reading  of  their  verdict. 

7N.  S.  225;  8  N.  S.  274. 

Art.  530. — If,  pending  the  adjournment,  some  member  of 
the  jury  have  fallen  sick,  so  as  to  be  unable  to  be  present  in 
court  when  the  verdict  is  read,  the  court  may  commission  a 
justice  of  the  peace  to  take  the  declaration,  on  oath,  of  such 
juror  as  to  the  manner  in  which  he  voted,  at  the  time  the 
verdict  was  agreed  to,  unless  the  parties  agree  to  dispense 
with  his  declaration. 

Art.  531. — If  a  juror  die  during  the  adjournment,  the 
court  shall  examine,  on  oath,  either  the  foreman  or  any  other 
member  of  the  jury,  in  order  to  ascertain  the  manner  in  which 
the  deceased  voted  at  the  time  the  verdict  was  agreed  to,  and 
the  testimony  of  such  juror  shall  have  the  same  effect  as  the 
declaration  of  the  deceased  would  liavc  had,  were  he  alive. 

Art.  532,- — The  plaintiff,  until  the  moment  when  the  jury 
shall  be  about  to  withdraw,  is  at  liberty,  on  pajdng  the  costs, 
to  discontinue  his  suit ;  but  if  the  plaintiff  allow  the  jury  to 
withdraw,  before  discontinuing  his  suit,  the  verdict  shall  be 
binding  on  him. 

6  N.  S.  643 ;  6  L  270 ;  3  A.  660 ;  ante,  492 ;  see  1  N.  S.  698. 


Sec  III. —  Of  Judgments  and  Costs. 

Art.  533. — Judgments  in  civil  cases,  are  rendered  by  de- 
fault, or  after  hearing  the  parties. 

6  N.  S.  514;  8  11.254. 

Art.  534. — Judgment  by  default  is  that  which  is  given  at 
the  demand  of  one  only  of  the  parties  to  the  suit,  whether  he 
be  plaintiff  or  defendant. 

Ante,  360. 

14 


210  OF   JUDGMENTS    AND    COSTS. 

Art.  535. — Judgment  contradictorily  rendered  is  that 
which  has  been  given  after  the  parties  have  been  heard,  either 
in  support  of  their  claims,  or  in  their  defence. 

8  R.  254. 

Art.  536. — If  after  the  cause  has  been  set  down  on  the 
docket  for  trial,  the  plaintiff  does  not  appear  either  in  person 
or  by  attorney,  to  plead  his  cause,  on  the  day  fixed  for  trial, 
the  defendant  may  require  that  judgment  of  nonsuit  be  ren- 
dered against  such  plaintiff,  with  costs. 

But  such  judgment  cannot  be  pleaded  as  res  judicata,  oi 
in  bar  of  another  suit,  for  the  same  cause  of  action,  provided 
the  plaintiff  show  that  he  has  paid  the  cost  of  the  first  suit. 

1  M.  529 ;  6  N.  S.  2,  457 ;  Y  N.  S.  171,  364;  3  L.  445 ;  9  L.  577 ;  5  R.  211 ; 
7  R.  106 ;  12  R.  99  ;  3  A.  660 ;  see  4  A.  176,  240 ;  5  A.  165. 

Art.  537. — Another  distinction  of  judgments  is  into  inter- 
locutory and  final. 

Art.  538. — Interlocutory  judgments  do  not  decide  on  the 
merits,  they  are  pronounced  on  lireliminary  matters,  in  the 
course  of  the  proceedings. 

Art.  539. — Definitive  or  final  judgments  are  such  as  de- 
cide all  the  points  in  controversy  between  the  parties. 

Definitive  judgments  are  such  as  have  the  force  of  res  jvr- 
dicata. 

5  X.  S.  104,  119  ;  7  N.  S.  257  ;  2  L.  424 ;  5  L.  225 ;  6  L.  167  ;  see  565,  666. 

Art.  540. — Courts  give  mandates  or  orders,  which,  though 
they  are  not  termed  judgments,  have,  nevertheless,  the  same 
effect  as  judgments  ;  such  are  mandates  of  aiTCst,  and  of 
seizure. 

Art.  541. — When  a  cause  has  been  tried  by  a  jmy,  and 
such  jury  have  given  a  general  verdict,  the  comi;  must  give 
judgment  jnirsuant  to  the  same,  mthin  three  days  from  the 
time  when  such  verdict  has  been  entered  on  the  records,  unless 
a  new  trial  has  been  granted. 

8  N.  S.  123 ;  see  490,  646 ;  4  K  S.  628. 

Art.  542. — If  it  be  a  special  verdict,  the  court  shall  have 


OF    JUDGJtENTS    AND    COSTS.  211 

the  same  time  for  deliberation  before  giving  judgment,  as  the 
law  gives  in  cases  wMch  are  tried  by  the  court. 

4N.  S.  311;  see  490. 

Art.  543. — All  judgments  must  be  read  by  the  judge  in 
open  court. 

4  A.  106. 

Art.  544. — All  judgments,  whether  interlocutory,  final,  or 
definitive,  must  be  correctly  entered  on  the  records,  with  the 
date  of  the  day  on  which  the  same  were  rendered. 

The  same  rule  must  be  observed,  in  relation  to  all  orders 
or  mandates  given  by  the  court,  as  well  as  to  all  motions  made 
by  the  parties  pending  the  suit. 

11  R.  160;  4  A.  106. 

Art.  545. — Definitive  judgments,  though  entered  on  the 
docket  of  the  judgments  of  the  court,  shall  not  hereafter  af- 
fect the  property  of  the  person  against  whom  such  judgments 
have  been  rendered,  all  laws  to  the  contrary  notwithstanding. 
— Such  judgment  must  be  recorded  at  the  office  of  mortgages, 
in  order  to  give  the  party  a  judicial  mortgage,  pursuant  to  the 
provisions  of  the  law. 

C.  C.  3289;  5  N.  S.  112;   1  L.  91;7  £.'486,492;  5  A.  225. 

Art.  546. — The  judge  must  sign  aU  definitive  or  final 
judgments  rendered  by  him,  but  he  shall  not  do  so,  until 
three  judicial  days  have  elapsed,  to  be  computed  from  the  day 
when  such  judgments  were  given. 

Stat.  20th  March,  1839,  p.  164.— §  10.  That  article  five 
hundred  and  forty-six  of  said  code  be  so  amended,  that  hereaf- 
ter, all  motions  for  new  trials  in  causes,  shall  be  made  and  deter- 
mined, and  all  final  judgments  signed  before  the  adjournment 
of  the  court  for  the  term  at  which  such  causes  were  tried,  and 
whether  three  judicial  days  shall  have  elapsed  or  not :  Provid- 
ed, that  this  amendment  does  not  apply  to  the  parish  of  Or- 
leans. 

4  N.  S.  625;   5  N.  S.  105,244,320,660;  1   L.  469,  613;   llL.  617;17   L. 
485;  4  R.  162;  7  R.  451  ;  11  R.  160;  1  A.  206,  334;  3  A.  62;  see  536. 


212  OF   JUDGMENTS    AND    COSTS. 

Art.  547. — Judgments  may  be  {imcntled  by  the  court  un- 
til after  ha\ang  been  signed,  in  order, 

1.  To  alter  the  phraseology  of  the  judgment  but  not  its 
substance  ; 

2.  To  correct  errors  of  calculation,  as  for  instance,  if  more 
have  been  given  tlian  was  demanded,  or  if  the  party  in  favor 
of  whom  the  judgment  was  given,  had  been  ordered  to  pay  the 
costs. 

Except  in  tlic  cases  above  provided,  courts  cannot  alter 
their  judgments  ;  but  they  may,  ex  officio,  direct  a  new  trial 
in  order  to  revise  their  judgments. 

6  L.  69;  7  R.  451. 

Art.  548. — A  judgment,  when  once  rendered,  becomes 
the  property  of  him  in  whose  favor  it  has  been  given  ;  and  tlie 
judge  cannot  alter  the  same,  except  in  the  mode  provided  by 
law. 

4  N.  S.  411 ;  6  N.  S.  97  ;  8  N.  S.  118,  466  ;  2  L.  148 ;  6  L.  377  ;  7  L.  '223,  501  ; 
9  L.  418;  4  R.  152;  7  R.  451  ;  9  L.  77,  267  ;  3  A.  657. 

Art.  549. — In  every  case  the  costs  shall  be  paid  by  the 
party  cast,  except  where  compensation  lias  been  allowed,  or 
real  tenders  made,  as  heretofore  provided  by  this  code. 

6  N.  S.  273,  493 ;  7  N.  S.  265 ;  2  L.  692 ;  9  L.  417  ;  10  L.  496 ;  9  R.  77  ;  10  R. 
147;  12  R.  194;  3  A.  702;  see  169,369,415. 

Art.  550. — The  same  ride  shall  be  observed,  with  re- 
gard to  tlie  party  cast,  on  incidental  demands,  whether  they 
be  dilatory  or  declinatory. 

2  L.  179;  9  R.  77;  12  R.  194;  3  A.  702. 

Art.  551. — If  the  court  have  not  decreed  in  their  judg- 
ment that  the  party  cast  should  pay  the  costs,  the  same  arc 
nevertheless  due  to  the  party  in  whose  favor  the  judgment 
had  been  given  ;  and  such  party  shall  be  entitled  to  have  the 
same  taxed,  on  execution  of  the  judgment. 

2  L.  179;  9  L.  77;  12  R.  194. 

Art.  552. — The  costs  to  be  paid  by  the  party  cast  include, 
not  only  the  taxed  costs,  but  also  all  the  expenses  incurred  in 


OF    JUDGMENTS   AND    COSTS.  213 

taldng  testimony  by  commission,  and  the  compensation  allow- 
ed, for  their  servdces,  to  such  experts,  auditors,  or  judicial  ar- 
bitrators, as  may  have  been  appointed  in  the  suit. 

Stat.  20th  Ilarch,  1839,  p.  166.— §  11.  That  article  two 
hundred  and  fifty-two  of  said  code  be  so  amended,  that  the  costs 
to  be  paid  by  the  party  cast,  shall  include,  in  addition  to  those 
therein  specified^  the  costs  of  copies  of  notarial  acts,  of  judg- 
ments, and  other  copies  of  the  records  of  other  pubUc  officers, 
necessary  in  the  cause. 

1  N.  S.  448 ;  9  R.  77 ;  1  A.  279  ;  see  462. 

Art.  553. — Interests  shall  not  be  allowed  by  the  judgment, 
unless  the  same  have  been  ex2:)ressly  claimed,  and  then,  only 
in  cases  in  which  the  law  permits  such  interests  to  be  stipu- 
lated. 

6  N.  S.  77,  202,  211,  271,  449,  462,  690;  6  N.  S.  10,  499,  575,  715  ;  7  N.  S. 
15,225,264,361,  363,409,436;  8  N.  S.  34,  185,  612;  1  L.  78 ;  2  L.  185;  5  L. 
328;  6  L.  67,  708,  730,  761 ;  7  L.  105,  134,  192,  323  ;  8  L.  261,  268,572;  9  L. 
72,  267,  445,  478;  11  L.  64,  216,  227,  238,  412,  49-3. 

Art.  554. — No  interest  shall  be  aUowe4  on  accounts  or 
unliquidated  claims. 

§  15.  That  article  five  hundred  and  fifty-four  of  the  Code 
of  Practice  be,  and  is  hereby  repealed. 

Art.  555. — All  judgments  rendered,  except  in  the  first  ju- 
dicial district,  shall  be  considered  as  having  efiect  only  from 
the  last  day  of  the  term,  whatever  may  be  the  day  on  wliich 
they  shall  have  been  signed. 

14  L.  277. 


CHAPTER  YI. 

0/  the  Mode  in  which  Definitive  Judgments  may  he  Revised, 
Modified  or  Reversed. 

Art.  55Q. — Definitive  judgments  may  be  revised,  set  aside, 
or  reversed  : 


214  OF    KEW   TRIALS. 

1.  By  a  new  trial ; 

2.  By  appeal ; 

3.  By  action  of  nullity  ; 

4.  By  rescission. 

This  last  mode  can  only  be  exercised  by  minors,  or  persona 
who  were  absent  when  judgment  was  rendered  against  them. 


Sec.  l.—Of  Nciv  Trials. 

Art.  557. — The  court  may  revise  their  judgment  by  grant- 
ing a  new  trial,  in  the  cases  hereafter  provided. 

Art.  558. — The  party,  who  beUcves  himself  aggrieved  by 
the  judgment  given  against  him,  may,  within  three  judicial 
days  after  such  judgment  has  been  rendered,  pray  for  a  new 
trial,  which  must  be  granted,  if  there  be  good  ground  for  the 
same. 

4  N.  S.  532;    5   K  S.  154,  244,  319 ;    6  N.  S.  654;    8  N.  S.  175  ;    5   L.  262 
6  L.  559;  7  L.  355  ;  10  L.  209;  3  R.  429 ;  7  R.  451. 

Art.  559. — The  party  demanding  a  new  trial,  must  set 
forth  the  grounds  on  wliich  he  rests  liis  demand,  and  the  same 
must  be  filed,  entered  on  the  records  of  the  court,  and  noti- 
fied to  the  adverse  party,  in  order  that  he  may  answer  within 
the  delay  prescribed  for  answering. 

3  R.  454;  seo  180. 

Art.  5G0. — A  new  trial  shall  be  granted, 

1.  If  the  judgment  appear  clearly  contrary'  to  law  and 
evidence ; 

2.  If  the  party  has  discovered,  since  the  trial,  evidence 
important  to  the  cause,  which  he  could  not,  ■with  due  dili- 
gence, have  obtained  before  ; 

1  N.  S.  643 ;  3  N.  S.  124  ;  4  N.  S.  419  ;  13  L.  424  ;  18  L  531 ;  19  L.  88,476 ; 
2  A.  225,  583,  025. 

3.  If  the  cause  has  been  tried  by  a  jury,  and  it  be  shown 
that  the  jury  has  been  bribed,  or  has  behaved  improperly,  so 
that  impartial  justice  has  not  been  done  in  the  cause. 


OF    THE    APPEAL    AND    STATEMENT    OF    FACTS.  215 

Art.  561. — If  a  new  trial  be  prayed  for  on  the  ground  of 
new  evidence  having  been  discovered,  or  on  account  of  bribery 
or  misconduct  of  the  jury,  or  of  the  adverse  party,  the  party 
prapng  for  the  new  trial,  must,  on  filing  his  motion,  annex  to 
the  same,  liis  affida\dt  of  the  facts  alleged  in  proof  of  the 
bribery,  or  misconduct  of  the  jiny,  or  of  his  having  discovered 
the  evidence  material  to  his  suit,  since  the  judgment  was  ren- 
dered, although  he  had  used  every  eflort  and  dihgcncc  in  his 
power,  to  procure  the  necessary  testimony.  This  affidavit 
must  be  filed  in  the  records,  in  order  that  the  adverse  party 
may  have  conmiurdcation  of  the  same. 

5  N.  S.  421;  6  N.  S.  327  ;  7  N.  S.  125,  149;  8  N.  S.  190;  2  L.  216,  497  ; 
3L.  383;  5  L.452;7  L.  84;  9  L.  411  ;  10  L.  155,409;  11  L.  141,  198;  3  R.  434  ; 
7  R.  451  ;  9  R.  177  ;  2  A  225 ;  4  A.  401,  544  ;  see  560. 

Art.  562. — No  affida\it  is  necessary  when  a  new  trial  is 
prayed  for  on  the  ground  of  the  judgment  being  contrary  to 
law  and  evidence. 

Art.  563. — The  court  shall  decide  summarily  on  such  ap- 
plications. If  a  new  trial  be  granted,  the  cause  shall  again 
be  set  on  the  docket ;  and  on  the  new  trial  the  parties  shall 
not  be  precluded  from  producing  new  proofs,  on  the  groimd  of 
the  same  not  having  been  offered  on  the  first  trial. 

5  N.  S.  659. 

Sec.  II. — Of  the  Appeal  and  Statement  of  Facts. 

Art.  564. — An  appeal  is  the  act  by  which  one  of  the  par- 
ties to  a  suit  has  recourse  to  a  superior  tribunal,  in  order  to 
have  the  judgment  of  an  inferior  court  corrected. 

6  N.  S.  323,  382,  598 ;  see  648,  570,  578,  582,  589,  590,  594,  901. 

Art.  565. — One  may  appeal  from  all  final  judgments  ren- 
dered in  causes  in  wliich  appeal  is  given  by  law,  whether  such 
judgments  have  been  rendered  after  hearing  the  parties,  or  by 
default. 

7  R.  451;  12  R.  315. 

Art.  566. — One  may  likewse  appeal  from  all  interlocu- 


216     OF  THE  APPEAL  AND  STATEMENT  OF  FACTS. 

tory  judgments;  when  sucli  judgment  may  cause  him  an  irre- 
paral:)le  injury. 

4  N.  &  3CG;  6  N.  S.  350,  878,  531  ;  7  N.  S.  63,  102,  204,  459 ;  8  X.  S.  313, 
691 ;  2  L.  142  ;  3  L.  194,  819,  444  ;  G  L.  133,  253,  436  ;  8  K  204,  605  ;  9  L.  94  ; 
10  L.  499;  11  L,  40,  3G9  ;  15  K  121;  2  A- 964  ;  3  A.  217. 

Art.  567. — The  party,  against  whom  judgment  has  been 
rendered,  cannot  appeal : 

1.  If  such  judgment  have  been  confessed  by  him,  or  if  he 
have  acquiesced  to  the  same,  by  executing  it  voluntarily  ;  ^ 

12  L.  127;    15  L.449;    3  R.  253;    4  R.  85  ;  5  R.  447*;    7   R.  451;  3  A.  115. 

2.  If  he  has  suflfercd  the  time  prescribed  by  law  for  ap- 
pealing to  elapse. 

7  N.  S.  243  ;   1  L.  290  ;  2  L.  2G5  ;  4  R.  127  ;  see  375,  593,  907. 

Art.  568. — An  appeal  Hes  from  all  judgments  rendered  by 
parish  courts,  except  that  of  New  Orleans,  on  all  suits  where 
the  amount  demanded  exceeds  one  hundred  dollars. 

Const.  1852,  art.  02. 

Art.  569. — Such  appeals  must  be  carried  before  the  dis- 
trict court,  witliin  whose  jurisdiction  the  parish,  where  the 
judgment  was  rendered,  is  included,  or  before  the  supreme 
court,  if  the  district  judge  cannot  sit  on  the  trial  of  the  ap- 
peal, for  causes  provided  for  by  special  laws. 

5  R.  1G2. 

Art.  570. — An  appeal  lies  from  all  judgments  rendered,  by 
the  district  courts  of  the  State,  and  by  the  parish  court  of 
New  Orleans,  on  all  suits  whore  the  amount,  or  value  in  dis- 
pute, exceeds  three  hundred  dollars. 

Such  appeals  must  be  carried  before  the  supreme  court  of 
the  State. 

2  N.  S.  314;  5  N.  S.  88,  507,047;  8  N.  S.  285,  339;  1  L.  240;  2  L.  439; 
3L.44G;  4  L.  Ill;  5  L.  36 ;  C  L.  87,  323,  598;  7  L.  611;  8  L.  167,  192;  11  L. 
82,123,125,402. 

Art.  571. — The  right  of  appeal  is  given,  not  only  to  those 
who  were  parties  to  the  cause  in  which  a  judgment  has  been 
rendered  against  them,  but  also  to  third  persons  not  parties 


OF  THE  APPEAL  AND  STATEMENT  OF  FACTS.     217 

to  such  suit,  when  such  tliird  persons  allege  that  they  have 
been  aggrieved  by  the  judgment. 

4  N.  g.  343,  C23 ;  6  N.  S.  161,  307  ;  7  N.  S.  345,  575,  676  ;  3  L.  319,  442 ; 
3  R.  113  ;  6  R.  154 ;  sec  574  ;  C.  C.  2408. 

Akt.  572. — Tutors,  curators,  and  other  persons  charged 
with  the  administration  of  another's  estate,  may  appeal  for 
the  benefit  of  the  persons  whoso  property  they  administer,  if 
they  deem  an  appeal  necessary. 

Art.  573. — Whoever  intends  to  appeal,  must  present  a 
petition  to  that  effect  to  the  court  which  lias  rendered  the  judg- 
ment by  which  he  believes  himself  to  have  been  aggrieved, 
praying  to  be  allowed  to  appeal  from  such  judgment,  and  oifer- 
ing  to  give  such  surety  as  the  court  may  direct,  as  hereafter 
provided. 

§  1.  Articles  five  hundred  and  seventy-three  and  five  hun- 
dred and  seventy-four  of  the  Code  of  Practice  shall  be  so 
amended  that  the  party  intending  to  appeal  may  do  so  cither 
by  petition  or  by  motion  in  open  court  at  the  same  term  at 
which  the  judgment  was  rendered,  in  which  last  case  the 
judge  shall  fix  the  amount  of  security,  and  cause  the  same, 
with  the  order  granting  the  appeal,  to  be  entered  upon  the 
minutes  of  the  court ;  and  when  an  appeal  has  been  granted 
on  motion  in  open  court,  no  citation  of  appeal  or  other  notice 
\o  appellee  shall  be  necessary. 

6    N.  S.  281  ;   3  L.  360;    10  L.  271,440,    6  R.  64 ;  4  A.  534 ;  see  596,  and 
amendment. 

Art.  574. — The  judge,  in  granting  the  appeal  so  de- 
manded, shall  state,  at  the  foot  of  the  petition  of  appeal,  the 
amount  of  the  surety  to  be  given  by  the  appellant,  and  the 
day  on  wliich  the  appeal  shall  be  returned. 

12  R.  187;  3   A.  135;  see  673,  and  amendment;   see   also,  6   N.  S.  316, 
3  L.  181;  7  L.  36,448;  10  L.  Ill,  254,  440. 

Art.  575. — If  the  appeal  have  been  taken  within  ten  days, 
not  including  Sundays,  after  the  judgment  has  been  notified 
to  the  party  cast  in  the  suit,  it  shall  stay  execution,  and  all 
further  proceedings,  until  a  definitive  judgment  be  rendered 
on  the  appeal ;  provided  the  appellant  give  liis  obligation  with 


218  OF    THE    APPEAL    AND    STATE3IENT    OF    FACTS. 

a  good  and  solvent  security,  residing  within  the  jurisdiction  of 
the  court,  in  favor  of  the  a])pellec,  for  a  sum  exceeding  by  one 
half  the  amount  for  which  tlie  judgment  was  given,  if  the  same 
be  for  a  specific  sum,  as  surety  fur  the  payment  of  the  amount 
of  such  judgment,  in  case  the  same  be  affirmed  by  the  court 
to  which  the  aj)peal  is  taken. 

§  1. — Articles  five  himdrcd  and  seventy-five  and  six 
hundred  and  twenty-four  of  the  Code  of  Practice  shall  be  so 
amended  that  whenever  an  answer  has  been  filed  in  a  suit  in 
which  the  defendant  has  had  personal  service  made  ui)on  him 
to  appear  and  file  his  answer,  or  when  a  judgment  has  been 
rendered  in  a  case  after  answer  filed  by  the  defendant  or  by 
his  counsel,  the  party  cast  in  the  suit  shall  be  considered  duly 
Dotified  of  the  judgment  by  the  fact  of  its  being  signed  by 
the  judge  :  Pro\dded,  that  in  the  country  parishes  no  execu- 
tion shall  issue  in  cases  where  an  appeal  lies  until  fifteen  days 
after  the  adjournment  of  the  comt,  by  which  the  judgment 
was  rendered,  within  which  delay  a  party  may  take  a  suspen- 
sive appeal  on  filing  petition  and  appeal  bond,  as  now  provided 
by  law. 

9  M.  34;  10  M.  74;  2  N.  S.  629;  5  N.  S.  128;  6  N.  S.  317;  8  N.  S.  441 ;  2 
L.  324 ;  4  L.  205 ;  6  L.  324,  586;  7  L.  448;  8  L.  204;  9  L.  49;  10  L.  254,  411, 
423;  19  K  107;  3  R.  42;  6  R.  17,  463;  9  R.  185;  12  R.  187;  1  A.  122;  2  A- 
1013;  3  A.  37. 

Art.  576. — If  the  judgment  decree  the  delivery  of  a  slave 
or  of  some  movable  of  a  perishable  nature,  the  court  shall 
require  surety  to  an  amount  exceeding  by  one  half  the  esti- 
mated value  of  such  slave  or  movable. 

3  R,  42  ;  1  A.  122. 

Art.  577. — But  if  the  judgment  decree  the  delivery  of 
real  estate,  not  of  a  jTerishable  nature,  security  shall  only  bo 
required  to  an  auKjunt,  exceeding  by  one  half  the  estimated 
value  of  the  revenue  to  be  derived  from  such  real  estate,  pend- 
ing the  suit,  and  for  such  further  amount  as  the  judge  may 
determine  as  surety  for  any  injury,  or  deterioration  which  may 
be  caused  to  the  estate  by  the  appellant,  while  in  possession 
of  the  same. 

8H.  42;  1  A.  122. 


OF  THE  APPEAL  AND  STATEMENT  OF  FACTS,     219 

Art.  578. — If  the  appeal  be  taken  after  the  ten  days  have 
expired,  or  if  the  appellant  fail  to  fui-nish  the  surety  required 
in  the  preceding  articles,  such  appeal  shall  not  stay  the  exe- 
cution of  the  judgment. 

But,  in  that  case,  no  surety  shall  he  required,  except  to 
such  an  amount  as  the  court  may  determine  as  sufficient  to 
secure  the  payment  of  the  costs. 

5  N.  S.  219,  238;  10  L.  12;  11  L.  383,  482;  3R.  13;  12  R.  187;  1  A.  122; 

4  A,  3  ;  see  596. 

Art,  579. — In  the  appeal  bond,  it  must  be  set  forth  in 
substance,  that  it  is  given  as  surety  that  the  appellant  shall 
prosecute  his  appeal,  and  that  he  shaU  satisfy  whatever  judg- 
ment may  be  rendered  against  him,  or  that  the  same  shall  be 
satisfied  by  the  proceeds  of  the  sale  of  his  estate,  real  or  per- 
sonal, if  he  be  cast  in  his  appeal ;  otherwise  that  the  surety 
shall  be  liable  in  his  place. 

6  N.  S.  294;  9  L.   229,   230;  10  R.   154,  191;  11   R.   266;  1  A,  122;  2  A. 

1013;  3  A.  37  ;  see  596,  and  amendment. 

Art,  580. — Some  judgments,  however,  are  executed  pro- 
visionally, although  an  appeal  has  been  taken  from  the  same 
within  the  delay  prescribed,  and  the  necessary  surety  given. 
Such  judgments  relate : 

1,  To  the  nomination  of  tutors  and  curators  of  minors,  of 
persons  absent  or  interdicted,  and  of  vacant  successions  ; 

17  L.  432  ;  4  L.  567  ;  see  876. 

2,  To  the  appointment  of  syndics  of  creditors,  when  the 
court  orders  that  they  shall  administer  provisionally. 

Art.  581. — When  an  appeal  has  been  taken,  and  security 
given,  as  directed  by  the  court,  the  clerk  shall  deliver  a  copy 
of  the  petition  of  appeal  to  the  sheriflF,  to  be  served  on  the 
appellee,  together  with  a  citation  to  appear  before  the  court  of 
appeal  to  answer  within  the  delay  hereafter  prescribed. 

6N.  S.  108;  6  L.  115,   117;  7  L.  362;  10  L.  483;  11  L.  179;  12  L.  14; 
6  R.  127  ;  4  A.  534  ;  see  596,  and  amendment. 

Art.  582. — The  sheriff  shall  serve  the  petition  and  cita- 
tion on  the  appellee,  if  he  reside  within  the  State,  or  his  advo- 


220     OF  THE  APPEAL  AND  STATEMENT  OF  FACTS. 

cate,  if  he  do  not,  by  delivering  a  copy  of  the  same  to  such 
appellee,  or  to  his  advocate,  or  by  leaving  it  at  the  place  of 
their  usual  domicil. 

5  N.  S.  428  ;  6  N.  S.  309  ;  7  N.  S.  395  ;  4  K  317  ;  6  K  139  ;  7  L  1 13,  362; 
8  L.  156:  9  L.  276,  473 ;  10  L.  160,  254,  399,  401,  489,  539,  580;  3  H.  1. 

Art.  583. — The  appellee  must  be  cited  to  appear  before 
the  court  of  appeal  at  its  next  term,  if  there  be  sufficient  time 
for  doing  so,  after  allowing  the  same  delay  which  is  granted 
to  defendants  in  ordinary  suits  ;  and  if  there  be  not  sufficient 
time  to  admit  of  the  appellee  ha^-ing  this  delay,  owing  to  the 
distance  from  his  domicil  to  the  place  where  the  court  of  ap- 
peal is  held,  he  shall  be  cited  to  appear  before  the  same  at  the 
subsequent  term. 

3  R.  271. 

Art.  584. — The  sheriff  must  make  his  return  on  the  back 
of  the  petition,  stating  how  the  same  was  notified  to  the  ap- 
pellee, in  the  same  manner  as  when  a  defendant  is  cited  to 
appear  before  a  court  of  original  jurisdiction,  and  dehver  or 
transmit  the  same  to  the  clerk  of  the  court  of  appeal,  before 
the  expiration  of  the  term  at  wliich  the  appellee  has  been 
cited  to  appear. 

5  N.  S.  510;   10  L.  484;   5  A.  42;   seo  200,  587. 

Art.  585. — After  the  appeal  has  been  allowed,  and  the 
surety  given,  the  clerk  of  the  court  from  whose  judgment  the 
appeal  is  taken,  shall  make  a  transcript  of  all  the  proceedings, 
as  well  as  of  all  documents  filed  in  the  suit,  and  annex  to  the 
same  the  petition  of  a2)peal,  in  order  that  the  same  may  be 
delivered  to  the  appellee  when  demanded. 

6  N.  S.  128;    2  L.  491  ;  3  L.  294,  305,  445,  44G ;    6  L.  38,  165,  211  ;  7  L, 
175,  638;  10  L.  516;  4  11.  323,  326;  2  A,  709;  3  A.  226;  5  A.  42,  716,  744. 

Art.  586. — If  the  testimony  jiroduced  in  the  cause  have 
been  taken  in  writing,  and  if  the  records  contain  all  the  evi- 
dence produced  in  the  suit,  the  judge  shall  certify,  at  the  foot 
of  the  records,  that  they  contain  all  the  evidence  adduced  by 
the  parties,  otherwise  he  must  make  a  statement  of  facts,  in 
the  manner  hereafter  provided. 

1  K  S.  591  :  2  N.  S.  240  ;  4  N.  S.  491  ;  5  N.  S.  102 ;  7  N.  S.  398  ;  8  N.  S.  303 . 


OF    THE    APPEAL    AND    STATEMENT    OF    FACTS.  221 

2  L.    164  ;  3  L.   296,  360,  455  ;  4  L.   8  ;  6  L.  102,  321,  479  ;  6  L.  157, 165,  211  ; 
10  L.  560  ;  7  R.  179  :  8  R.  148 ;  2  A.  242. 

Art.  587. — The  appellant  must  return  the  said  petition 
of  appeal  and  the  transcript  of  the  proceedings  into  the  court 
of  appeal,  on  the  return  day  thereof. 

4  N.  S.  346  ;  5  N.  S.  191  ;  8  N.  S.  185  ;  3  L.  251 ;  5  L.  349 ;  7  L.  177  ;  8  L. 
206;  11  L.  199;  2  A.  628. 

Art.  588. — If  the  appellant  neglect  to  file  in  the  appel- 
late court  the  copy  of  the  record  and  the  accompanying  pa- 
pers, within  the  time  thus  fixed,  the  appellee  may  employ  one 
of  the  modes  mentioned  in  the  two  following  articles,  either  to 
have  execution  on  the  judgment,  or  final  judgment  on  the  ap- 
peal, 

1  N.  S.  573  ;  8  N.  S.  597  ;  2  A.  1013. 

Art.  589. — If  the  appellee  prefers  having  execution  on 
the  judgment,  he  may,  within  three  days  after  the  time  allow- 
ed for  the  appcUant  to  file  the  record,  obtain  a  certificate  from 
the  clerk  of  the  appellate  court,  declaring  that  the  record  has 
not  been  brought  up,  and  on  the  production  of  this  certificate 
in  the  lower  court,  it  shaU  award  execution  on  the  judgment, 
which  then  becomes  irrevocable. 

5  N.  S.  192 ;  8  N.  S.  184  ;  4  L.  68  ;  5  L.  348  ;  7  L.  344  ;  10  L.  500,  503  ;  10  R. 

419  ;  1  A.  414  ;  2  A.  1013  ;  3  A.  245  ;  5  A.  81. 

Art.  590. — If  the  appellee  prefers  to  have  judgment  on 
the  appeal,  he  may  obtain  a  copy  of  the  record  from  the  lower 
court,  and  bring  it  up  to  the  appellate  court,  and  may  pray 
for  judgment,  or  for  the  dismissal  of  the  appeal,  in  the  same 
manner  as  if  the  record  had  been  brought  uj)  by  the  appel- 
lant. 

4N.  S.  360;   6N.  S.  159;   7  L.  176;  2  A.  769;  3  A.  226;  5  A.  42,  716,  744; 

see  884. 

Art.  591. — If  the  appeal  have  been  duly  returned  on  the 
return  day,  the  appellee  must  appear  within  the  delay  above 
prescribed,  and  file  his  answer  prapng  that  the  judgment  of  the 
inferior  court  be  affirmed,  and  the  appellant  decreed  to  pay  the 
costs. 

See  887. 


222     OF  THE  APPEAL  AND  STATEMENT  OF  FACTS. 

Art.  592. — NcvcrthelcRs,  if  the  appellee  complain  of  some 
parts  of  the  judgment  of  the  inferior  court,  he  may,  without 
appealing;  from  the  same,  pray  it  be  set  aside  in  those  points 
in  which  he  believes  he  is  aggrieved. 

7  N.  S.  G57  ;  2  A.  546 ;  Bee  883,  889. 

Art.  593. — No  a]ipcal  will  lie,  except  as  regards  minors, 
after  a  year  has  expired,  to  be  computed  from  the  day  on 
which  the  final  judgment  was  rendered,  if  the  party  claiming 
the  same  reside  in  the  State,  and  after  two  years,  if  he  be  ab- 
sent therefrom. 

This  delay,  as  relates  to  minors,  must  be  computed  from 
the  day  of  their  becoming  of  age. 

2L.  324;  "7  L.  381;  11  L.  383;  3  R.  113;  5  R.  270;  7  R.  451;  12  R.  180,456; 

see  1133. 

Art.  594. — From  the  moment  when  the  citation  of  appeal 
is  served  on  the  appellee,  the  appellant  cannot  withdraw  his 
appeal,  and  whether  the  appellee  obtain  the  rejection  of  the 
appeal  by  producing  the  record  from  the  court  below,  or  pro- 
secute execution  on  the  judgment  appealed  from,  on  the  certi- 
ficate of  the  clerk  that  the  record  has  not  been  brought  up  by 
the  appellant,  the  appeal  shall  be  considered  as  abandoned, 
and  the  appellant  shall  not  be  afterwards  allowed  to  re- 
new it. 

4  L.  41  ;  7  L.  448;  1  A.  414;  2  A.  028,  722;  3  A.  339;  see  901. 

Art.  595. — But  if  the  appellant  wishes  to  withdraw  his 
appeal  before  he  has  cited  the  appellee,  he  may  be  allowed  to 
do  so,  on  motion  to  the  lower  court ;  and  in  such  case,  he  may 
renew  his  appeal  within  the  time  herein  above  allowed. 

G  N.  S.  IGO;  see  10  L.  502. 

Art.  596. — If,  on  the  execution  of  the  judgment  of  the 
appellate  court,  there  is  not  sufficient  property  of  the  appel- 
lant to  satisfy  the  judgment  and  costs,  the  api)cllec  may  ob- 
tain judgment  against  the  surety  given  by  the  ai)pellant,  so 
far  as  his  security  goes,  and  this  on  mere  motion  of  the  lower 
court,  after  gi\^ng  to  such  security  notice  in  writing  of  the  said 
motion,  ten  days  before  obtaining  judgment. 


OF  THE  APPEAL  AND  STATEMENT  OF  FACTS.     223 

Stat  20th  March,  1839,  p.  170— §  20.  In  all  cases  of  ap- 
peal to  the  supreme  court  or  other  tribunals  in  this  State,  if 
the  judgment  appealed  from  be  affirmed,  the  plaintiff  may,  on 
the  return  of  the  execution  that  no  property  has  been  found, 
obtain  a  decree  against  the  surety  on  the  apj)eal  bond  for  the 
amount  of  the  judgment,  on  motion,  after  ten  days  notice, 
which  motion  shall  be  tried  siunmarily  and  without  the  inter- 
vention of  a  jury,  unless  the  said  surety  shall  allege  under  oath 
that  the  signature  to  the  bond  purporting  to  be  his,  is  not  gen- 
uine, or  that  the  judgment  has  been  satisfied. 

9L.  229;  10  R.  136,  147,  191;  1  A.  122;  2  A.  1013;  3  A.  37 ;  5  A.  523. 

Art.  597. — The  rules  provided  in  the  preceding  articles 
shall  govern  all  appeals,  whether  the  same  be  taken  from  judg- 
ments rendered  by  district  courts,  parish  courts,  or  by  the 
parish  court  of  New  Orleans. 

Art.  598. — Appeals  taken  from  the  judgments  of  parish 
courts  except  that  of  Orleans,  shall  be  tried  de  novo,  that  is  to 
say,  that  each  of  the  parties  shall  be  allowed  to  produce  new 
evidence,  and  to  have  their  witnesses  examined  again. 

Art.  599. — Nevertheless,  if  the  testimony  given  before  the 
parish  court  be  taken  in  writing,  and  has  been  sent  with  the 
records  to  the  district  court,  the  party  in  whose  favor  such  tes- 
timony was  given,  may  use  the  same  before  the  district  court, 
without  being  obliged  to  produce  the  witnesses  in  person. 

Art.  600. — The  rules  of  practice,  to  be  observed  by  the 
supreme  court,  are  hereafter  prescribed  in  a  particular  title,  and 
the  two  following  articles  : 

Art.  601. — Either  party  may  require  the  clerk  to  take  down 
the  testimony  in  writing,  which  shall  serve  as  a  statement  of 
facts,  if  the  parties  should  not  agree  to  one. 

6  L.  129  ;  7  L.  245  ;  10  L.  562;  7  R.  179. 

Art.  602. — When  the  depositions  of  witnesses  have  not  beer 
taken  in  writing  in  the  inferior  court,  the  party  intending  to 
appeal,  or  his  advocate,  must  require  the  adverse  party  or  his 
advocate,  to  draw  up,  jointly  with  him,  a  statement  of  the  facts 


224         OF  THE  NULLITY  OF  JUDGMENTS. 

proved  in  the  cause,  and  tliis  statement  thus  drawn  up  and  sign- 
ed, cither  by  the  parties  or  their  advocates,  sliallbe  annexed  to 
the  records,  and  a  transcript  of  the  same  transmitted  to  the  su- 
preme court. 

6  N.  S.  89 ;  8  N.  S.  304  ;  2  L.  225 ;  10  L.  213  ;  4  R.  259  ;  7  R.  179  ;  4  A.  18;  sec 

3  R.  1C9. 

Art.  603. — If  the  adverse  party,  when  required  to  do  so, 
refuse  to  join  in  making  out  the  statement  of  facts,  or  if  the 
parties  cannot  agree  as  to  the  manner  of  drawing  the  same,  the 
court,  at  the  request  of  either,  shall  make  such  statement,  ac- 
cording to  their  recollection  of  the  facts,  or  from  the  notes  they 
have  taken  of  the  evidence. 

1  N.  S.  396;  2  L.  165,  296,  347;  8L.  64;  3  R.  169;  4R.  259;  7  R.  179; 
4  A.  18;  see  896. 


Sec.  III. — 0/  the  Nullity  of  Judgments. 

Art.  604. — One  may  demand  the  nulUty  of  a  judgment,  for 
any  of  the  causes  provided  in  this  section,  even  if  no  appeal 
have  been  taken  from  the  same,  or  if  the  delay  for  taking  the 
same  have  expired. 

9  R.  191 ;  1  A.  92 ;  5  A.  219 ;  sec  11  L.  419 ;  12  L.  394. 

Art.  605. — The  causes  for  wliich  the  nullity  of  a  definitive 
judgment  may  be  demanded,  are  two-fold  :  those  that  are  rela- 
tive to  the  form  of  proceeding,  and  those  that  appertain  to  the 
merits  of  the  question  tried. 

9  R.  191;  1  A.  92;  see  604. 

Art.  605. — The  vices  of  form  for  which  a  judgment  can  be 
annulled,  are  the  following  : 

1.  If  a  judgment  has  been  rendered,  even  contradictorily, 
against  a  person  disquahfied  by  law  from  appearing  in  a  suit, 
as  a  minor,  without  the  assistance  of  his  curator,  or  tutor,  or  a 
married  woman  without  the  authorization  of  her  husband  or  of 
the  court ; 

2.  If  the   defendant,   although   quahfied  to  appear  in  a 


OF    THE    NULLITY    OF    JUDGMENTS.  225 

cause,  have  been  condemned  by  defiiult,  without  ha\dng  been 
cited  ; 

3.  When  the  judgment,  though  clothed  with  all  the  neces- 
sary formalities,  has,  nevertheless,  been  given  by  a  judge  in- 
competent to  try  the  suit,  either  owing  to  the  amount  in  dispute, 
or  to  the  nature  of  the  cause  ; 

4.  If  the  defendant  has  not  been  legally  cited,  and  has  not 
entered  appearance,  joined  issue,  or  had  not  a  regular  judgment 
by  default  taken  against  him. 

6  N.  S.  507  ;  2  L.  35  ;  10  L.  269,  573  ;  5  R.  284  ;  9  R.  191 ;  11  R.  37,  77  ; 
1  A.  92  ;  5  A.  219 ;  see  18  L.  651  ;  1  R.  528  ;  3  A-  646. 

Art.  607. — A  definitive  judgment  may  be  annulled  in  all 
cases  where  it  appears  that  it  has  been  obtained  through 
fraud,  or  other  ill  practices  on  the  part  of  the  party  in  whose 
favor  it  was  rendered ;  as  if  he  had  obtained  the  same  by 
bribing  the  judge  or  the  witnesses,  or  by  producing  forged 
documents,  or  by  denying  ha'sdng  received  the  pa}mient  of  a 
sum,  the  receipt  of  which  the  defendant  had  lost  or  could  not 
find  at  the  time,  but  has  found  since  the  rendering  of  the  judg- 
ment. 

7N.  S.  606;  2L.  139;  8  L.  103;  11  L.  139;  4  R.  127;  9  R.  191 ;  1  A.  92; 

3  A.  446. 

Art.  608. — The  nullity  of  a  judgment  may  be  demanded 
from  the  same  court,  which  has  rendered  the  same,  or  from 
the  court  of  appeal  before  which  the  appeal  from  such  judg- 
ment was  taken,  pursuant  to  the  provisions  hereafter  ex- 
pressed. 

1  N.S.200,  703;  3  N.  S.  136;  8  N.  S.  520;  1  L.  21 ;  2  L.  15;  6  L.  656;  12  L. 
894;  14  L.  150,  177;  5  R.  284;  6  R.  365;  7  R.  63  ;  9  R.  191;  11  R.  77;  1  A. 
92,  172 ;  2  A.  492 ;  3  A.  453 ;  5  A.  219 ;  see  604,  606. 

Art.  609. — The  nullity  can  be  demanded  on  the  appeal, 
only  while  the  appeal  is  still  pending,  and  when  the  nullity  is 
apparent  on  the  face  of  the  records. 

3  L.  451;  7  R.  115;  9  R.  191;  1  A.  92;  see  604. 

Art.  GIO. — The  party  prajang  for  the  nullity  of  a  judgment, 
before  the  court  which  has  rendered  the  same,  must  bring  his 
15 


226  ,      OF    THE    RESCISSION    OF    JUDGMENTS. 

action  by  means  of  a  petition  ;  and  the  adverse  party  must  be 
cited  to  appear,  as  in  ordinary  suits. 

7  R.  115;  D  R.  191 ;  1  A.  92 ;   see  180,  604. 

Art.  611. — Though  there  has  been  no  appeal  within  the 
delay  prescribed  l)y  law,  the  nullity  of  the  judgment  ma}'  yet 
be  demanded  by  means  of  an  action,  brought  before  the  court 
which  has  rendered  the  same,  within  the  delay  hereafter  pro- 
vided. 

9  R.  191  ;  1  A.  92;  see  G04. 

Art.  612. — The  nullity  of  a  judgment  rendered  against  a 
party  without  his  having  been  cited,  or  by  an  incompetent 
judge,  even  if  all  the  formalities  of  the  law  have  been  ob- 
served, may  be  demanded  at  any  time,  unless  the  defendant 
were  present  in  the  parish,  and  yet  suffered  the  judgment  to 
be  executed  without  opposing  the  same. 

The  same  rule  shall  govern,  as  regards  a  defendant  not 
qualified  to  appear  in  a  suit  where  judgment  has  been  given 
against  him,  if  he  suifer  the  judgment  to  be  executed  against 
his  property,  without  opposing  the  same. 

9  R.  191 ;  1  A.  92 ;  see  G04 ;  see  8  N.  S.  148 ;  2  L.  266. 

Art.  613. — When  a  judgment  has  been  obtained,  through 
fraud  on  the  part  of  the  plaintiff,  or  because  the  defendant 
had  lost  or  mislaid  the  receipt  given  to  him  by  the  plaintiff ; 
the  action  for  annulling  such  judgment  must  be  brought 
within  the  year  after  the  fraud  has  been  discovered,  or  the  re- 
ceipt found. 

7  R.  94;  9  R.  191;  1  A.  92. 

Sec.  IV. — Of  the  Rescission  of  Judgments. 

Art.  614. — A  judgment  may  be  reversed,  if  it  has  been 
rendered  on  an  attachment,  obtained  against  a  person  absent, 
and  who  had  no  knowledge  of  the  action  having  been  brought 
against  him  ;  if  such  person  show  that  he  was  not  indebted, 
either  for  the  whole,  or  for  part  of  the  sum  for  which  the 
judgment  was  obtained  and  his  property  sold. 


OF    THE    PROCEEDINGS    IN    EXECUTION,    ETC.  227 

But  this  action  shall  be  prescribed  after  two  years  have 
elapsed  from  the  date  of  the  judgment. 

5  R.  284. 

Art.  615. — A  judgment  rendered  against  a  minor  may  be 
rescinded,  if  such  minor  show,  either  that  his  cause  has  not 
been  well  defended,  or  that  he  has  been  aggrieved  by  such 
judgment. 

But  that  action  shall  be  prescribed,  if  four  years  have 
elapsed  after  the  minor  has  arrived  to  the  age  of  majority ; 
nor  can  it  be  brought  by  the  curator,  or  the  tutor,  during  the 
minority  of  their  ward. 

Stat  7th  April,  1826,  p.  172.— §  12.  Article  six  hun- 
dred and  fifteen,  shall  not  be  taken  or  construed  to  imply 
the  nidlity  of  a  judgment  where  a  minor  has  been  regularly 
represented  in  a  suit  according  to  law. 

10  L.  275. 

Art.  616. — The  action  for  rescinding  judgment,  of  which 
this  section  treats,  must  be  pursued  by  presenting  a  petition 
to  the  court,  by  which  such  judgment  was  rendered  ;  and  the 
adverse  party  must  be  cited,  as  in  ordinary  suits. 
6  R.  284;  Bce  180. 


CHAPTER  VI. 

0/  the  Proceedings  in  Execution  of  Judgments. 

Sec.  I. — General  Provisions. 

Art.  617. — The  execution  of  judgments  belongs  to  the 
courts  by  which  the  causes  have  been  tried  in  the  first  in- 
stance, whether  such  judgments  have  been  affirmed  or  reversed 
on  appeal. 

1  N.  S.  658 ;  7  L  409 ;  6  R.  427 ;  12  R.  519. 

Art.  618. — Therefore,  the  court  of  appeal,  whether  it 
affirm  or  reverse  the  judgment,  or  whether  it  has  rendered 


228  OF    THE    PROCEEDINGS   IN 

another  definitive  judgment  in  the  cause,  must  send  the  same 
to  the  inferior  court,  in  order  that  it  may  be  executed. 

7  N.  S.  347;  6  R.  92;  see  915. 

Art.  619. — This  judgment  cannot  even  be  executed,  until 
it  has  been  recorded  in  the  records  of  the  inferior  court  which 
first  had  cognizance  of  the  cause. 

6  R.  92. 

Art.  620. — This  recording  shall  be  directed  to  be  made, 
on  motion  in  open  court,  by  the  party  wishing  to  make  use  of 
the  judgment,  but  without  any  obligation,  on  his  part,  to  give 
previous  notice  to  the  opposite  party. 

Art.  621. — It  is  also  the  duty  of  the  party  wisliing  to 
avail  himself  of  the  judgment,  to  follow  up  the  execution  of 
it,  according  to  the  delays  and  forms  hereafter  provided. 

Art.  622. — If  the  judgment  has  been  rendered  where  no 
appeal  lies,  or  on  confession  of  one  of  the  parties,  the  party 
wisliing  to  make  use  of  it,  may  prosecute  the  execution  imme- 
diately after  the  close  of  the  term,  excepting  in  the  first  dis- 
trict. 

Art.  623. — If  the  judgment  has  been  confirmed,  or  a  new 
one  rendered  on  the  appeal,  which  pronounces  definitively  on 
the  cause,  the  execution  may  be  prayed  for,  as  soon  as  the 
judgment  has  been  recorded  in  the  inferior  court,  to  which 
the  execution  is  remanded. 

6  R.  92. 

Art.  624. — Kespecting  judgments  subject  to  appeal,  the 
part  in  whose  favor  one  is  rendered,  can  only  proceed  to  the 
execution  after  ten  days,  counting  from  the  notification  which 
he  is  obliged  to  make  to  the  opposite  party,  if  the  latter  has 
not  appealed  from  the  judgment,  witliin  this  interval,  or  if, 
having  appealed,  he  has  failed  to  furnish  the  security  necessary 
to  stop  execution. 

Amended  by  Slat.  21d  March,  1843,  p.  40,  §  2.  See  art.  575,  where  the 
amendment  will  be  found.— 3  L.  258;  6  R.  17. 

A  RT.  625. — A  party  wishing  for  the  execution  of  a  judg- 


EXECUTION    OF   JUDGMENTS.  229 

ment,  which  has  been  rendered  in  his  favor,  may  apply  for 
this  purpose  to  the  clerk  of  the  court  having  cognizance  of 
the  case  in  the  first  instance,  who  shall  deliver  to  him  an  order 
of  execution,  according  to  the  particulars  of  the  judgment 
which  has  been  pronounced,  as  is  declared  hereafter. 

2  L.  66. 

Art,  626. — This  order  must  be  in  English  and  French, 
when  the  French  language  is  the  maternal  tongue  of  the  party 
cast,  must  be  sealed  with  the  "seal  of  the  court,  and  signed  by 
the  clerk,  who  shall  direct  it  to  the  sheriff,  with  orders  to  ex- 
ecute it,  according  to  its  contents,  or  according  to  the  direc- 
tions of  the  judgment  to  which  the  writ  may  refer,  and  to 
make  his  return  to  the  court  of  the  manner  in  which  he  shall 
have  executed  the  writ. 

Art.  627. — In  this  case,  and  in  all  others  where  the  sheriff 
is  charged  with  the  execution  of  an  order  of  the  court,  he 
must,  on  receiving  it,  indorse  on  it  the  day  of  the  week,  month 
and  year,  on  which  it  was  delivered  to  him. 

Art.  628. — Orders  of  execution  are  different,  according  to 
the  nature  of  the  judgments  to  be  executed  ;  for  these  judg- 
ments may  direct  that  a  thing  shall  be  given,  or  a  thing  be 
done  or  omitted,  or  a  sum  of  money  be  paid,  and  this  variety, 
subjects  the  execution  to  different  rules,  which  are  explained 
in  the  two  following  sections. 

Art.  629. — It  is  for  the  court,  whether  appellate,  or  infe- 
rior, which  has  rendered  the  judgment,  to  take  cognizance  of 
the  manner  of  its  execution,  when  the  proper  manner  of  exe- 
cuting it  is  to  be  determined. 

7  N.  S.  658 ;  6  R.  92,  427. 

Sec.  II. — Of   the  Execution  of  Judgments  loMcli  require 
sonyetliing  to  he  given  or  something  to  he  done. 

Art.  630. — When  the  judgment  directs  one  of  the  par- 
tics  to  deliver  an  estate  to  the  other,  the  clerk  must  issue  a 
writ  of  possession,  by  wliich  the  sheriff  shall  be  enjoined  to 


230        OF  THE  EXECUTION  OF  JUDGMENTS. 

put  him,  in  whose  favor  the  judgment  was  renilered,  in  pos- 
session of  the  estate  and  appurtenances,  belonging  to  it,  ac- 
cording to  the  judgment. 

7  L.  409,416;  9  L.  273. 

Art.  631. — This  writ  of  possession  shall  be  directed  to  the 
sheriff,  with  a  copy  of  the  judgment,  and  even  of  the  petition 
to  wliich  it  refei-s,  if  the  party  require  it,  to  the  end  that  the 
sheriff  may  not  be  mistaken,  conceniing  the  nature  of  the 
estate  and  appurtenances  of  which  he  is  to  give  the  posses- 
sion. 

Art.  632. — If,  three  days  after  the  sheriff  shall  have  sensed 
a  copy  of  this  writ,  on  the  party  who  has  been  condemned  to 
quit  the  estate,  he  shall  refuse  to  obey  the  order  and  to  go 
oflf,  the  sherifl"  shall  proceed  to  put  in  full  possession  of 
the  estate  the  party  who  has  obtained  the  judgment,  and  shall 
compel  the  other  to  depart,  even  by  breaking  open  the  doors, 
if  it  be  necessar}'^,  and  by  summoning  the  posse  comitatus,  if 
resistance  be  made. 

Art.  633. — The  party,  against  whom  the  judgment  has 
been  rendered,  shall  be  considered  to  have  complied  with  it, 
by  quitting  the  estate,  and  leaving  the  other  party  free  to  take 
possession. 

11  L.  820. 

Art.  634. — If  the  judgment  should  order  the  delivery  of  a 
slave  or  other  specific  object,  the  writ  shall  direct  the  sheriff, 
on  fliilure  of  the  debtor  to  deliver  to  him  the  slave  or  other 
specific  object,  after  three  days'  service  of  a  copy  of  the  writ, 
to  seize  the  slave  or  other  object  wherever  it  may  be  found, 
and  deliver  it  to  the  party  in  whose  favor  the  judgment  was 
rendered. 

Art.  635. — If  the  party,  who  has  been  condemned  to  de- 
liver a  slave  or  other  object,  conceals  it,  or  canies  it  out  of  the 
jurisdiction  of  the  court,  so  that  the  sherifl  cannot  seize  it, 
the  party,  in  whose  favor  the  judgment  was  rendered,  shall 
have  the  choice  either  of  instituting  an  action  for  damages,  or 
of  cumpeDing  a  specific  execution  of  the  judgment,  by  obtain- 


OF  THE  EXECUTION  OF  JUDGMENTS.        231 

ing  a  sequestration  of  his  other  property,  until  he  has  satisfied 
it,  in  the  same  manner  as  is  practised  on  judgments,  directing 
a  specific  performance,  as  is  stated  below. 

2  A.  760. 

Art.  636. — When  the  judgment  orders,  not  the  delivering, 
but  the  doing  or  refraining  from  something  specified  in  it,  if  the 
party  condennied,  on  demand  made  by  the  sheriff  that  he  shall 
comply  with  it,  refuses  or  neglects  to  do  so,  and  this  refusal  or 
neglect  appears  by  a  certificate  of  the  sherifi",  the  party  in  whose 
favor  the  judgment  was  rendered,  may  obtain,  on  motion,  an 
order  to  distrain  all  the  property  movable  and  immovable  of 
the  party  who  is  in  default,  until  he  shall  have  fully  satisfied 
the  judgment. 

7  N.  S.  8 ;  11  L.  498  ;  2  A.  760  ;  C.  C.  1921 ;  see  1058. 

Art.  637. — It  is  the  duty  of  the  sherifi",  charged  with  the 
execution  of  this  order  of  distringas,  to  seize  mthout  delay,  the 
movable  and  immovable  property  of  the  party  in  default,  and 
to  receive  the  rents,  income  and  other  profits,  and  to  keep  the 
whole  subject  to  the  order  of  the  court,  until  the  order  shall  be 
revoked. 

1  A.  435. 

Art.  638. — Nevertheless,  the  court  may,  from  time  to  time, 
when  the  nature  of  the  case  requires  it,  order  that  the  sums 
arising  from  the  income  thus  collected,  shall  be  paid  to  the  party 
in  whose  favor  the  judgment  was  rendered,  if  he  demands  it, 
and  gives  good  and  sufficient  security  to  refund  the  sums  thus 
paid  to  him,  when  the  judgment  of  the  court  shall  have  been 
complied  with,  and  he  shall  have  been  paid  the  expenses  and 
damages  which  may  be  allowed  to  him,  as  provided  in  the  fol- 
lowing article. 

Art.  639. — The  judge  may  quash  the  order  of  distringas, 
if  it  be  proved  to  him  that  the  party  condemned  has  fully  sat- 
isfied the  judgment,  and  has  paid  aU  the  damages  which  he  has 
the  power  of  gi-anting  to  the  other  party. 

Art.  640. — As  soon  as  the  sheriff  shall  have  executed  the 


232        OF  THE  EXECUTION  OF  JUDGMENTS. 

writs  of  possession  and  order  of  distringas,  which  were  directed 
to  him,  he  must  return  into  the  court  which  issued  tliem,  the 
originals  of  these  writs,  with  his  return  indorsed,  stating  the 
manner  in  wliich  they  have  been  executed,  and  the  particulars 
of  the  property  distrained,  in  case  the  order  of  distringas  was 
ifisued. 


Sec,  III. — Of  the  Execution  of  Judgments  directing  the  pay~ 
ment  of  a  sum  of  money. 

§  1.    Of  tlie  Writ  of  fori  facias. 

Art.  641. — When  the  judgment  orders  the  payment  of  a 
sum  of  money,  the  party  in  whose  favor  it  is  rendered,  may 
apply  to  the  clerk,  and  obtain  from  him  a  writ  of  fori  facias 
against  the  property  of  his  debtor. 

4N.  S.  197  ;  5  N.  S.  287,  419,  707  ;  7  N.  S.  15G  ;    8  N.  a  391 ;  7  L.  273  ;  9  R.  2C7. 

Art.  642. — This  writ  is  directed  to  the  sheriff  of  the  parish 
where  the  property  of  the  debtor  is  situated,  and  orders  him  to 
8ei2!e  the  property,  real  and  personal,  rights  and  credits  of  the 
debtor,  and  to  sell  them,  to  satisfy  the  judgment  obtained 
against  him, 

Stat.  1th  April,  1826,  p.  1V4.— §  IG,  All  writs  oi fieri 
facias  issued  by  the  clerks  of  the  several  courts  throughout  this 
State  shall  be  made  returnable  by  them  in  not  less  than  thirty,' 
nor  more  than  seventy  days. 

Stai.  20th  March,  1839,  p.  166.— §  13.  In  the  parish  of 
Orleans,  whenever  a  party,  ])laintiff  in  a  cause,  has  ap})lied  for 
a  writ  oi  fieri  facias  against  the  defendant,  and  has  reason  to 
believe  that  a  third  person  has  property  or  eftects  in  his  pos- 
session, or  under  liis  control,  belonging  to  the  defendant,  or  is 
indebted  to  him,  he  may  cause  such  third  i)erson  to  be  cited  to 
answer  under  oath,  such  interrogatories  as  may  be  i)ropounded 
to  him  touching  said  property  and  eflfects,  or  such  indebtedness, 
in  the  same  manner  and  with  the  same  regulations  as  arc  pro- 
vided in  relation  to  garnishees  in  cases  of  attachment.     Such 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      233 

third  person  shall  thereupon  be  bound  to  answer  in  the  same 
manner,  and  shall  be  liable  in  the  same  manner  for  his  ni'glect 
or  refusal  to  answer,  and  his  answers  may  be  disproved  in  the 
same  manner  as  those  of  garnishees  ;  in  case  such  third  person 
shall  confess  in  his  answers  that  he  has  property  or  effects  in 
his  possession,  or  under  his  control,  belonging  to  the  defendant, 
or  is  indebted  to  him  in  any  sum  of  money,  the  court  shall 
order  him  forthwith  to  deliver  up  said  property,  to  pay  such 
sum  (if  the  same  be  due,  and  if  not,  when  the  same  sliall  be 
due),  to  the  sheriff,  and  a  copy  of  said  order,  with  the  receipt 
of  the  sheriff  indorsed  thereon,  shall  be  delivered  to  the  said 
third  person,  and  shall  be  decreed  equivalent  to  a  receipt  from 
the  debtor  himself ;  the  property  and  effects,  in  the  possession 
of  a  third  person,  belonging  to  the  defendant,  or  debts  due  by 
him  to  such  defendant,  shall  be  decreed  to  be  levied  as  by  the 
sheriff  from  the  date  of  the  service  of  the  interrogatories,  on  such 
persons. 

Stat.  I8th  March,  1840,  p.  43.— The  thirteenth  section 
of  the  above  recited  act  shall  be  so  amended  that  the  provisions 
therein  contained,  shall  have  full  effect  in  each  and  every  parish 
in  the  State  x)f  Louisiana.  i 

4  L.  344;  9  R.  182;  12  R.  8. 

Art.  643. — As  soon  as  the  sheriff  has  received  this  writ,  he 
must  execute  it,  without  any  delay,  by  seizing  the  property  of 
the  debtor,  which  he  shall  find  in  his  parish,  except  such  things 
as  arc  mentioned  in  the  following  article  : 

Art.  644. — The  sheriff  cannot  seize  the  linen  and  clothes, 
belonging  to  the  debtor  or  his  wife,  nor  his  bed,  nor  those  of 
his  family,  nor  his  anus  and  military  accoutrements,  nor  the 
tools  and  instruments  necessarj'  for  the  exercise  of  the  trade  or 
profession,  by  which  he  gains  a  living. 

Stat.  2M  March,  1842,  p.  380.— §  1.  Besides  the  effects 
mentioned  in  the  articles  644  and  647  of  the  Code  of  Practice, 
the  sheriff  shall  in  no  case  seize  the  rights  of  personal  ser\atude8, 
of  use  and  habitation,  of  usufruct  to  the  estate  of  a  minor  child, 
or  the  income  of  dotal  property. 


234  OF   THE    EXECUTION   OF   JUDGMENTS,    ETC. 

§  2.  Any  law,  or  part  of  law,  contrary  to  the  provisions  of 
tliis  act  shall  l)e,  and  the  sanie  is  hereby  re])ealed. 

Stat.  I8th  March,  1852,  p.  222.— §  1.  In  atldition  to  the 
property  now  exempt  from  sale  under  execution,  there  shall  be 
exempt  by  law,  from  sale  on  execution,  for  debts  hereafter  con- 
tracted, the  lot  or  piece  of  ground  and  buildings  thereon,  occu- 
pied as  a  residence  and  bona  fide  owned  by  the  debtor,  having 
a  family,  to  the  value  of  one  thousand  dollai-s  ;  Provided,  that 
no  debtor  shall  be  entitled  to  the  exemption  pronded  for  in 
this  section,  whose  wife  shall  own  in  her  own  right  and  be  in 
the  actual  enjoyment  of  property  worth  more  than  one  thou- 
sand dollars. 

§  2.  To  entitle  any  property  to  the  exemption  provided  for 
in  the  preceding  section,  a  full  and  accurate  description  thereof 
shall  be  recorded  in  the  office  of  the  recorder  of  mortgages  of 
the  parish  in  wliich  said  property  is  situated,  in  a  book  to  be 
provided  and  kept  for  that  purpose,  by  said  recorder,  and  to  be 
known  as  the  homestead  exemption  book,  but  no  proi)erty  shall 
by  virtue  of  this  act,  be  exempt  from  sale  for  non-payment  of 
taxes  or  assessments  levied  pursuant  to  law,  or  for  a  debt  con- 
tracted for  the  purchase-money  thereof,  or  for  any  debt  con- 
tracted prior  to  the  recording  of  the  description  of  said  property 
as  aforesaid. 

§  3.  In  addition  to  the  homestead  of  a  householder  herein- 
before cxemjjted  from  sale  under  execution,  there  shall  also 
be  exempt  by  law,  from  seizure  for  rent  and  sale  on  execution, 
such  household  effects  as  may  be  necessary  for  housekeeping, 
owned  by  any  person  being  a  housekeeper,  or  having  a  family 
for  which  he  or  slie  provides,  to  the  amount  and  value  of  two 
hundred  and  fifty  dollars  ;  Provided,  that  such  exemption  shall 
not  extend  to  any  execution  issued  on  a  demand  for  the  pur- 
chase-money of  any  of  the  effects  or  things  in  this  sect  ion  spe- 
cified and  contained. 

§  4.  In  addition  to  the  property  and  effects  hereinbefore 
exempted  from  seizure  for  rent  and  sale  under  execution,  there 
shall  also  be  exempt  by  law,  from  seizure  for  rent  and  sale  on 


\ 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      235 

•  execution,  the  books  of  the  family  library,  the  family  portraits 
and  pictures,  the  working  tools  and  instruments  of  any  mechan- 
ical trade,  and  the  books,  instruments  and  apparatus  of  any 
lawful  profession,  which  may  be  necessaiy  for  the  exercise  of 
such  trade  or  the  practice  of  such  profession,  and  by  which  any 
person  gains  a  li\dng  for  himself  and  family  ;  Provided,  that 
such  exemption  shaU  not  extend  to  any  execution  issued  on  a 
demand  for  the  purchase-money  of  any  of  the  articles  or  things 
in  this  section  mentioned  and  contained. 

§  5.  In  addition  to  the  property  and  effects  hereinbefore 
exenipted  from  sale  under  execution,  and  from  seizure  for  rent, 
there  shall  also  be  exempted  by  law,  from  seizure  or  attach- 
ment, or  from  being*  garnisheed,  the  wages  of  labor  and  the 
compensation  for  professional  or  other  ser\ices,  which  shall 
have  been  earned  and  due  within  the  last  thirty-one  days  pre- 
ceding the  issuing  of  any  seizure,  attachment  or  garnishment 
against  a  debtor  to  an  amount  sufficient  for  the  necessary  sup- 
port of  any  person  having  a  family  for  which  he  or  she  pro\ades  ; 
Provided  that  such  wages  or  compensation  may  in  all  cases  be 
seized,  attached  or  garnisheed  for  alimony,  furnished  to  the 
debtor  or  his  family,  and  also  for  the  rent  of  the  premises  occu- 
pied by  them  at  the  time, 

§  6.  Tliis  act  shall  take  eflfect  from  and  after  its  passage, 
and  all  laws  or  parts  of  laws  conflicting  with  this  act  or  con- 
trary to  any  of  its  provisions,  are  hereby  repealed. 

An  Act  to  Repeal  an  Act  entitled  "  Aii  Act  to  exempt  the 
Homestead  of  a  Householder  from  seizure  and  sale  on  Execu- 
tion, and  also  to  exempt  from  execution  from  seizure  for  rent, 
and  from  being  garnisheed,  certain  personal  property  and 
effects,  and  the  ivages  of  labor,  and  compensation  for  j^rofes-- 
sional  and  other  services. — An  Act  entitled  "  An  Act  to  ex- 
empt the  Homestead  of  a  Householder  from  seizure  and  sale  on 
execution,  and  also  to  exempt  from  execution,  from  seizure  for 
rent,  and  from  being  garnisheed,  certain  personal  jjroperty  and 
effects,  and  the  wages  of  labor,  and  compensation  for  profes- 


236      OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

sional  and  otliersomccs/'apjjrovccl  the  eighteenth  March,  eigh- 
teen hundred  and  fifty-two,  be,  and  the  same  is  hereby  repealed, 

7  N.  S.  3S7  ;  1  A.  393  ;  5  A.  C51 ;  6  A.  789. 

Art.  645. — Nor  can  he  seize  the  agricultural  implements 
and  working  cattle,  separately  from  the  lunil  to  which  they  are 
attached. 

Stat  27th  March,  1843,  p.  45.— §  1.  Article  six  hundred 
and  forty-five  of  the  Code  of  Practice  shall  be  so  amended, 
that  in  addition  to  the  articles  therein  exempted  from 
seizure  in  certain  cases,  shall  be  included  the  corn,  fodder,  hay, 
provisions,  and  other  supplies  necessary  for  can^-ing  on"  the 
supply  of  the  plantation  to  which  they  are  attached,  for  the 
current  year. 

§  2.  This  act  shall  be  in  force  from  and  after  its  publi- 
cation in  the  State  Gazette  ;  and  all  laws  and  parts  of  laws 
conflicting  herewith,  shall  be  and  the  same  are  hereby  re- 
pealed. 

Art.  646. — With  the  exceptions  mentioned  in  the  two 
preceding  articles,  and  if  the  party  prosecuting  the  execution 
of  tlic  judgment,  has  no  privilege  or  mortgage  on  the  i)roperty 
of  the  debtor,  the  sheriif  must  commence  by  seizing  the  mova- 
ble projierty  ;  if  there  be  not  movables,  he  may  seize  slaves, 
and  if  there  be  no  slaves,  he  may  seize  the  immovables,  unless 
the  debtor  point  out  himself  to  the  sheriff  what  property  he 
wishes  to  have  seized  and  sold  first  ;  Provided  the  property 
thus  pointed  out  be  situated  in  the  parish. 

4  N.  S.  91. 

Art.  647. — But  if  the  debtor  has  neither  movable,  nor 
slaves,  nor  immovable  property,  the  sheriff  may  seize  the 
rights  and  credits  which  belong  to  him,  and  all  sums  of  money 
which  may  be  due  to  him,  in  whatsoever  right,  unless  it  be  for 
alimony  or  salaries  of  office. 

1  L.  103;  3  II.  152;  4  K.  340;  11  R.  124;  12  R.  105;  1   A.  435 ;  4  A- 
293,  307  ;  C.  C.  1987  ;  see  art  6-lJ,  and  ameiidmeDt. 

Art.  648. — The  debtor  shall  not  have  the  right  of  point- 
ing out  to  the  sheriff  the  property  wliich  he  wishes  him  to 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      23V 

seize,  when  the  creditor  who  prosecutes  the  execution  of  the 
judgment  has  a  privilege  or  mortgage  on  part  of  liis  property, 
for  in  this  case  the  creditor  shall  have  a  right  to  direct  the 
seizure  of  such  property  as  is  mortgaged  to  him,  if  he  prefers 
it ;  hut  with  respect  to  other  property,  not  subject  to  his 
claims,  he  must  conform  to  the  directions  above  given. 

Art.  649. — The  debtor  shall  also  lose  the  right  of  point- 
ing out  to  the  sherifi'  the  property  to  be  seized,  if  he  allows 
the  sheriff  to  execute  the  writ,  and  advertise  for  sale  the  goods 
seized,  without  exercising  the  right, 

3  R.  152;  see  art.  642,  and  amendment. 

Art.  650. — Nevertheless,  the  debtor,  whose  land  shall 
have  been  seized,  shall  always  be  entitled  to  demand  that  a 
portion  only,  which  he  shall  designate,  shall  be  sold,  if  that 
portion  is  sufficient  to  satisfy  the  judgment :  but  if  it  be  in- 
sufficient, a  sale  of  the  other  portion  shall  be  made. 

Art.  651. — The  sheriff  shall  seize  the  property  of  the  debt- 
or to  a  sufficient  amount  to  discharge  the  judgment,  as  well 
as  interests  and  costs  ;  he  may  even  seize  sometliing  beyond 
this  amount,  to  pay  the  interest  which  may  become  due,  and 
the  estimated  costs  of  the  seizure  and  sale. 

6  N.  S.  90;  7  L.  569. 

Art.  652, — Nevertheless,  if  the  debtor  is  of  opinion  that 
the  sheriff  has  seized  more  property  than  could  reasonably  be 
thought  necessary  to  discharge  the  judgment  and  costs,  he 
may,  on  application  to  the  judge  who  issued  the  writ,  demand 
that  an  appraisement  be  made  of  the  property  taken  by  the 
sheriff. 

3  R.  12.3. 

Art.  653. — The  judge,  on  application,  shall  order  that  an 
appraisement  of  the  property  seized  be  made  by  two  compe- 
tent persons,  whom  he  shall  name  and  swear  for  that  purpose, 
and  if  he  shall  find,  by  the  appraisement,  that  more  property 
was  taken  than  is  necessary  to  satisfy  the  judgment,  as  has 
been  directed  above,  he  shall  reduce  the  seizure  to  such  an 
amount  only,  as  shall  be  sufficient  for  this  purpose. 


238      OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

Stat.  7th  April,  1826,  p.  172.— §  13.  Articles  sLx  hundred 
and  fifty-two  and  fifty-three,  shall  be  so  amended,  that  unless 
the  application  for  the  aj>praisomcnt  of  the  property  according 
to  said  articles  be  made  before  the  day  of  sale,  it  shall  in  no  case 
have  the  effect  to  prevent  the  sale  on  the  day  fixed  by  the  ad- 
vertisement. , 

Art.  654. — It  shall  be  the  duty  of  the  sherilBf  as  soon  as 
he  shall  have  executed  the  writ  oi  fieri  facias ,  to  give  notice 
thereof  in  writing  to  the  debtor,  and  to  annex  thereto  a  Ust 
of  the  property  seized,  which  he  shall  deliver  to  him  in  person, 
or  leave  at  his  place  of  ordinary  residence. 

6L.  631;  8R.  152;  9  R.  182;  12  R.  8;  2  A.  239;  5  A.  737. 

Art.  655. — Three  days  after  this  notice,  the  sheriff  shall 
advertise  the  sale  of  the  property  seized,  in  the  manner  and 
form  directed  in  the  following  paragraph. 

6  L.  630;  8  R.  152;  9  R.  509;  11  R.  533;  12  R.  8 ;  see  745. 

Art.  Q5Q. — When  the  sheriff  seizes  houses  or  lands,  he 
must  take  at  the  same  time  all  the  rents,  issues  and  revenue, 
which  this  property  may  yield. 

6  R.  100;  12  R.  8;  see  1141. 

Art.  657. — If  it  be  land  or  a,  plantation  which  he  has 
taken,  unless  the  same  has  been  leased  or  rented,  it  shall  re- 
main sequestered  in  his  custody  until  the  sale  ; 

Consequently,  he  may  appoint  a  keeper,  or  an  overseer  to 
manage  it,  for  whom  he  shall  be  responsible. 

6  R.  100;  2  A.  157;  see  1142. 

Art.  658. — If  it  be  a  house  which  he  has  seized,  it  also 
remains  sequestered  in  his  custody  ;  he  may  receive  the  rent 
from  those  who  occupy  it ;  he  may  even  lease  it,  provided  it 
be  not  for  a  time  beyond  that  appointed  for  the  sale. 

6R.  100;  5  A.  174. 

Art.  659. — When  the  objects  seized  consist  of  money, 
movables,  beasts  or  slaves,  he  should  put  them  in  a  place  of 
safety,  under  the  penalty  of  being  responsible  for  the  loss  oi 
injury  which  they  may  sustain  through  his  fault  or  neglect. 

6  R.  345 ;  7  .R.  82. 


OF    THE    EXECUTION    OF    JUDGMENTS,    ETC.  239 

Art.  660. — Nevertheless,  the  sheriff  cannot  remove  from 
lands  or  plantations  the  implements  of  agriculture,  the  cattle 
or  slaves,  employed  in  cultivating  or  clearing  them,  but  he  may 
appoint  a  guardian  or  overseer  for  their  preservation. 

G  R.  345;  2  A.  157;  14  L.  281. 

Art.  661. — Until  the  sale,  the  sheriff  is  authorized  to 
make  sucli  disbursements  as  are  necessary  for  their  preserva- 
tion, or  even  for  their  cultivation  and  clearing,  if  the  things 
seized  consist  of  lands  or  plantations. 

7  R.  82 ;  9  R.  509. 

Art.  662. — The  sheriff  cannot  lease  or  hire  out  the  ani- 
mals or  slaves  he  may  have  seized,  unless  he  be  authorized  ex- 
pressly by  the  court,  with  the  consent  of  both  the  parties. 

6  R.  345  ;  7  R.  82. 


§  2.  Of  the  Sale  and  Adjudication  of  Fropertiy  seized  under  the  tvrit 
of  Fieri  Facias. 

Art.  663. — The  debtor  may,  down  to  the  moment  of  ad- 
judication, prevent  the  sale  of  the  property  taken,  and  obtain 
its  release,  by  paying  into  the  hands  of  the  sheriff  the  amount 
of  the  judgment,  with  interest  and  costs. 

Art.  664. — The  sale  of  the  property  must  be  made  by  the 
sheriff  at  the  seat  of  justice  for  the  parish  where  the  seizure 
is  made,  and  he  shall  choose  for  the  place  of  sale,  the  spot 
where  it  may  have  the  greatest  degree  of  pubhcity,  except  in 
the  cases  enumerated  in  the  following  articles. 

6  R.  21 ;  2  A.  385 ;  3  A.  147. 

Art.  665. — In  the  country,  the  sale  may  be  made  on  the 
plantations  which  are  to  be  sold,  if  the  debtor  require  it ;  but 
in  this  case,  notice  must  be  given  of  the  fact  in  the  advertise- 
ments of  sale. 

6  R.  21. 

Art.  666. — Animals  and  utensils  attached  to  plantations 
and  manufactories,  and  such  articles  as  cannot  be  easily  re- 


240  OF    THE    EXECUTION    OF    JUDGMENTS,    ETC. 

moved,  must  be  sold  on  the  spot  where  they  are  taken,  on  the 
day  and  hour  appointed  for  this  purjiose  by  the  sheriff. 

Art.  667. — Three  days  after  the  sheriff  shall  have  given 
notice  to  the  debtor,  of  the  property  seized  from  him,  unless 
an  injunction  issue  to  prevent  liim,  he  must  advertise  the  sale 
of  such  property  at  the  day,  place  and  hour,  which  he  shall 
designate  for  that  purpose  in  the  manner  hereinafter  directed. 

6  R.  345  ;  8  R.  152 ;  see  4  L.  396  ;  see  655. 

Art.  668. — Every  such  sale  must  be  announced  by  public 
advertisements,  composed  in  English  and  French,  and  affixed 
to  the  door  of  the  church,  if  there  be  one,  and  to  that  of  the 
court-house  of  the  parish  where  the  seizure  is  made. 

2  L.  360;  4  L.  890;  6  L.  737,  738. 

Art.  669. — These  advertisements  must  be  inserted,  more- 
over, three  times  in  Enghsh  and  French,  to  wit  :  in  two  news- 
papers, for  seizures  which  are  made  in  the  parish  of  Orleans, 
and  in  one  newspaper  only,  for  seizures  which  are  made  in  the 
other  parishes  where  public  papers  are  printed. 

4  N.  S.  456  ;  9  L.  643 ;  12  R.  130 ;  2  A.  615. 

No.  260.  Stat.  April  2dfh,  1853. — An  Act  relative  to  Judi- 
cial Advertisements. — §1.  In  all  cases  in  which  advertisements 
are  required  to  be  made  in  relation  to  judicial  proceedings,  or  in 
the  sale  of  property  under  judicial  process,  such  advertisements 
shall  be  published  in  a  newspaper  printed  in  the  parish  in  which 
such  judicial  proceedings  are  carried  on,  or  in  which  such  sale  is 
to  take  place  ;  and  if  there  be  no  newspa})er  i)ubhslicd  in  such 
parish,  such  advertisements  shall  be  published  by  jiosting  the 
same  on  the  door  of  the  court-house  and  two  other  pubhc  places 
in  different  parts  of  said  parish  ;  Provided,  that  it  shall  be  the 
duty  of  the  sheriff  or  other  officer  publishing  sudi  advertise- 
ments to  publish  the  same  in  the  English  language  only,  except 
when  the  defendant  in  the  judicial  process  or  the  person  direct- 
ing the  sale  shall  request  the  said  advertisement  to  be  published 
in  the  French  language  also  ;  and,  provided  further,  that  this 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      241 

proviso  shall  not  apply  to  the  parishes  of  St.  Landry,  Calcasieu, 
Lafayette,  Vermillion,  St.  Martin,  St.  Mary,  St.  Bernard,  West 
Baton  Rouge,  St.  Charles,  Lafourche,  Avoyelles,  Natchitoches, 
Plaquemine,  St.  James,  Assumption,  Ascension,  Terrebonne, 
Pointe  Coupee,  Iberville,  and  St.  John  the  Baptist. 

§  2.  When  there  are  two  or  more  newspapers  published  in 
the  parish  where  such  proceedings  are  had  or  such  sale  is  to  be 
made,  the  defendant  in  the  judicial  process  shall  have  the 
right  of  selecting  the  newspaper  in  which  said  advertisement 
is  to  be  made  ;  Provided,  said  selection  be  made  within  three 
days  after  the  notice  of  such  proceedings  or  the  seizure  made 
under  said  process  ;  and  if  the  defendant  neglect  to  select, 
the  plaintiff  shall  have  right  to  do  so. 

§  3.  The  costs  of  publishing  advertisements  required  by 
law,  as  hereinbefore  provided,  shall  not  exceed  the  rate  of  one 
dollar  for  every  hundred  words,  for  the  first  insertion,  and  at 
the  rate  of  fifty  cents  for  every  subsequent  insertion  ;  Provided, 
that  in  case  the  said  advertisements  cannot  be  published  at 
the  rates  herein  stipulated,  they  shall  be  published  by  posting 
the  same  at  the  door  of  the  court-house  and  two  other  public 
places  in  the  parish  wherein  such  publication  is  to  be  made, 

§  4.  The  third  section  of  this  act  shall  not  apply  to  the 
city  of  New  Orleans,  and  all  laws  contrary  hereto  are  hereby 
repealed. 

Art,  670. — The  sale  of  movable  effects  can  only  be  made 
ten  days  after  the  first  notice  which  has  been  given,  and  that 
of  slaves,  ships,  steamboats,  and  immovables,  only  thirty  days 
after  the  same  notice. 

11  L.  438;  9  R.  185. 

Art,  671. — Ten  days  before  proceeding  to  the  sale  of  the 
property  seized,  if  it  consist  of  immovables,  the  sheriff  shall 
summon  the  party  whose  effects  are  seized,  by  a  written  notice, 
deUvered  to  him  in  person,  or  left  at  liis  usual  place  of  resi- 
dence, to  appear  on  the  day,  place  and  hour  which  he  shall 

16 


242      OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

mention  to  him,  for  the  imrposc  of  naming  an  appraiser  of 
the  property  to  be  thus  sold. 

Stat.  25th  March,  1828,  p.  154.— §  10.  After  the  pro- 
mulgation of  this  act,  two  days  notice  given  to  the  phiintiff  and 
defendant,  by  the  sheriff,  to  appoint  men  to  vahie  property 
under  execution,  shall  be  sufficient,  any  law  to  the  contrary 
notwithstanding. 

9  R.  531 ;  3  A.  390. 

Art.  672. — If  the  party  appear  and  name  his  appraiser, 
the  creditor  shall  have  the  right  of  naming  the  other,  and  if 
either  the  jDlaintiff  or  defendant  refuse  to  appoint  an  ap- 
praiser, he  shall  be  appointed  by  the  sheriff,  in,  the  name  of 
the  plaintiff  or  defendant,  who  shall  have  refused  or  neglected 
to  make  the  appointment. 

3  A.  390  ;  see  770. 

Art.  673. — The  appraisers,  thus  named,  shall,  before  jiro- 
ceeding  to  make  an  appraisement,  take  an  oath  before  a  judge 
or  justice  of  the  peace,  to  make  a  just  and  true  appraisement 
of  the  property  seized,  whether  for  cash,  or  for  the  time  of 
credit  designated  by  the  parties,  as  provided  above. 

Stat.  5th  March,  1847,  p.  55. — §  1.  Article  six  hundred 
and  seventy-three,  and  seven  hundred  and  seventy,  of  the 
Code  of  Practice,  shall  be,  and  the  same  are  hereby,  repealed. 

§  2.  Article  six  hundred  and  seventy-three  of  the  Code  of 
Practice,  shall  read  as  follows  : 

"  The  appraisers  thus  named  shall,  before  proceeding  to 
make  an  appraisement,  take  an  oath  before  the  sheriff  of  the 
parish,  or  before  a  judge  or  justice  of  the  peace,  to  make  a  true 
and  just  appraisement  of  the  property  seized,  whether  for  cash 
or  for  the  time  of  credit  designated  by  the  parties,  as  provi- 
ded above." 

Art.  674. — If  they  cannot  agreee  in  their  appraisement, 
they  shall  name  an  umpire  who  shall  also  be  sworn ;  and  if 
they  cannot  agree  on  the  choice  of  an  umpire,  the  sheriff  shall 
name  one. 

8  A.  S90. 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      243 

Art.  675. — When  the  appraisers  shall  have  been  thus 
named  and  sworn,  they  shall  proceed  together  to  appraise  the 
property  taken,  and  after  ha^^ng  reduced  this  appraisement 
to  writing,  and  affixed  their  signature  or  ordinary  mark, 
they  shall  deliver  it  to  the  sheriff  to  serve  as  a  basis  for  the 
sale. 

5  N.  S.  288  ;  9  R.  531 :  10  R.  466  ;  3  A.  390. 

Art.  676. — Slaves  seized  must  be  appraised  either  by  the 
head,  or  by  famihes,  and  the  other  effects  must  be  appraised 
■with  such  minuteness  that  they  may  be  sold  together,  or  sep- 
arately,  to  the  best  advantage  of   the  debtor,  as   he  may 

QJLTGCt 

9  L.  543 ;  9  R.  531 ;  10  R.  466  ;  3  A.  390. 

Art.  677. — On  the  day  and  hour  appointed  for  the  sale, 
the  sheriff  or  liis  deputy  shall  repair  to  the  place  where  it  is  to 
be  made,  and  shall  proceed  to  cry  the  property  taken,  after 
having  read,  in  an  audible  voice,  the  notice  declaring  the  na- 
ture and  description  of  it. 

12R.  8;3A.  39a 

Art.  678. — If  they  are  slaves,  lands,  or  other  objects  sus- 
ceptible of  being  mortgaged,  which  are  to  be  sold,  the  sheriff, 
after  having  declared  of  what  they  consist,  as  directed  in  the 
preceding  article,  shall  also  read,  in  an  audible  voice,  the  cer- 
tificate wliich  he  shall  have  obtained  for  this  purpose  from  the 
office  of  the  register  of  mortgages  in  the  parish  where  the  sale 
is  made,  to  show  whether  there  exist  any  privileges  or  mort- 
gages on  the  property  offered  for  sale. 

5  R.  272 ;  9  R.  65,  509  ;  10  R.  65  ;  3  A.  390. 

Art.  679. — When  there  exists  a  mortgage  or  privilege  on 
the  property  put  up  for  sale,  the  sheriff  shall  give  notice,  be- 
fore he  commences  the  crying,  that  the  property  is  sold  sub- 
ject to  all  privilege,  and  hypothecations  of  whatsoever  kind 
they  may  be,  with  which  the  same  is  burdened,  and  with  the 
condition  that  the  purchaser  shall  pay  into  his  hands  whatever 
portion  of  the  price  for  which  the  property  shall  be  adjudica- 


244      OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

ted,  may  exceed  the  amount  of  the  privileges  and  special 
mortgages,  to  which  such  property  is  subject, 

1  N.  S.  603 ;  3  K  S.  605 ;  4  N.  S.  162  ;  6  N.  S.  616  ;  7  N.  S.  281,  383 ;  6  L. 
298  ;  9  R.  531  ;  3  A.  390 ;  see  241,  718. 

Akt.  680. — These  previous  steps  being  taken,  the  sheriff 
shall  proceed  to  the  sale  and  adjudication  of  the  property 
taken,  and  if  the  price  offered  by  the  highest  and  last  bidder, 
does  not  reach  two- thirds  of  the  appraisement  made  on  it,  as 
dii'ected  above,  then  the  tiling  shall  not  be  adjudged,  and  the 
sale  shall  be  postponed  for  fifteen  days,  if  it  be  immovable 
property,  and  ten  days  if  movable,  counting  from  the  fresh 
notice  which  shall  be  given  by  the  sheriff,  in  the  manner  here- 
after directed. 

6  N.  S.  124 ;  4  L.  396 ;  "7  L.  91,  570  ;  9  L.  11 ;  10  L.  134  ;  9  R.  531 ;  3  A.  390 ; 
see  703,  705,  716. 

Art.  681. — The  sheriff,  on  giving  notice  of  the  place,  day 
and  hour  of  this  new  crying,  must  announce  that  it  will  be 
made  at  twelve  months'  credit,  the  purchaser  being  required 
to  furnish  good  and  sufficient  joint  security,  and  special  mort- 
gage on  the  thing  sold,  bearing  interest  from  the  day  of  the 
adjudication,  at  the  same  rate  as  that  allowed  by  the  judg- 
ment. 

10  R.  30. 

Art.  682. — At  this  second  adjudication,  the  thing  seized 
shall  be  adjudged  to  the  highest  and  last  bidder,  provided  the 
amount  be  equal  to  three-fifths  of  the  appraisement,  on  the 
terms  mentioned  in  the  preceding  article,  unless  there  exists 
a  privilege  or  special  mortgage  in  favor  of  some  other  person 
besides  the  judgment  creditor,  or  entitled  to  a  preference  over 
him. 

Stat  7th  Aiyril,  1826,  p.  172.— §  14.  The  proviso  and 
exception  contained  in  article  six  hundred  and  eighty-two  are 
repealed,  and  that  at  the  second  adjudication,  the  thing  seized 
shall  be  adjudged  to  the  highest  and  last  bidder  for  whatever 
it  will  bmig  on  twelve  months'  credit  according  to  the  terms 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      245 

mentioned  in  article  six  hundred  and  eighty-one.  The  fol- 
lowing words  in  article  seven  hundred  and  twenty,  to  wit : 
"  After  the  advertisements  directed  above,  but  with  the  mod- 
ifications contained  in  the  following  article,"  shall  be  repealed ; 
and  that  the  whole  of  article  seven  hundred  and  twenty-one 
be  and  the  samt  is  hereby  repealed. 

Art.  683. — But  if  there  exist  on  the  property  any  privi- 
leges or  special  mortgage  in  favor  of  other  persons  than  the 
judgment  creditor,  and  which  are  preferred  to  him,  the  sheriff 
shaU  announce  that  the  purchaser  shall  be  entitled  to  retain 
in  his  hands,  out  of  the  price  for  which  the  property  was  ad- 
judicated, the  amount  required  to  satisfy  the  privileged  debts 
and  special  hypothecations  to  which  the  property  sold  was 
subject,  but  that  he  shall  be  bound  to  give  his  obligation  for 
the  surplus  of  the  purchase -money,  if  there  be  any,  and  sub- 
scribe his  obligation  at  twelve  months'  credit,  with  security, 
as  is  stated  above, 

1  N.  S.  3S3  ;  9  L.  11,  92,  99 ;  5  R,  2l2 ;  6  R.  407 ;  7  R.  398 ;  10  R.  65,  107 ; 
12  R.  389  ;  1  A.  219  ;  2  A.  617 ;  3  A.  642. 

Art.  684. — Consequently,  if  the  price  offered  in  this  case 
by  the  highest  and  last  bidder,  is  not  sufficient  to  discharge 
the  privileges  and  mortgages  existing  on  the  property,  and 
which  have  a  jDreference  over  the  judgment  creditor,  there 
shall  be  no  adjudication,  and  the  sheriff  shall  proceed  to  seize 
other  property  of  tlie  debtor,  if  there  be  any, 

4  N.  S.  163 ;  7  R.  406 ;  10  R.  65,  107  ;  12  R.  130  ;  1  A.  32,  330,  426 ;  2  A.  617  ; 

3  A.  542. 

Art.  685. — If  the  seizing  creditor  be  a  vendor,  or  has  any 
privilege  or  special  mortgage  on  the  property  seized  and  of- 
fered for  sale,  which  is  anterior  or  entitled  to  a  preference  over 
other  privileges  or  special  mortgages  existing  on  said  property, 
he  may,  notwithstanding  what  is  contained  in  the  preceding 
article,  require  that  the  property  be  sold  at  any  price  to  pay 
him,  although  the  purchase-money  be  not  sufficient  to  satisfy 


246       OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

all  the  privileges  or  mortgages  \vith  which  such  property  i8 
burdened. 

5  R.  272;  6  R.  100;  9  R.  '72. 

Art.  686. — When  a  seizing  creditor  has  a  privilege  or  spe- 
cial mortgage  on  the  property  seized,  for  a  debt  of  wliich  all 
the  instalments  are  not  yet  due,  he  may  demand  that  the  pro- 
perty be  sold  for  the  wliole  of  the  debt,  provided  it  be  on  such 
terms  of  credit  as  are  grafted  to  the  debtor  by  the  original 
contract  for  the  payment  of  such  instalments  as  are  not 
due. 

16  L.  171 ;  1  R.  295  ;  6  R.  461  ;  9  R.  72 ;  10  R.  49  ;  see  11  L.  72. 

Art.  687. — When  a  property  seized  and  sold  is  subject  to 
any  real  charge,  as  usufruct,  use,  habitation,  servitude  or  others, 
it  is  sold  with  all  these  burdens,  and  the  purchaser  is  bound 
to  fulfil  them  himself,  or  permit  the  enjoyment  of  them,  over 
and  above  the  price  to  be  jiaid. 

Art.  688. — The»debtor  may  himself  bid  for  his  property 
seized  and  offered  for  sale,  on  the  same  terms  as  every  other 
person. 

The  case  is  the  same  with  respect  to  the  judgment  credi- 
tor. 

6  R.  407;  3  A.  381 ;  see  8  L.  303,423. 

Art.  689. — If  the  person  to  whom  the  property  has  been 
adjudged,  shall  refuse  to  pay  to  the  sheriff  the  price  of  the  ad- 
judication, or  to  offer  the  proper  sureties,  when  the  sale  has 
been  made  on  credit,  the  sheriff  shall  expose  to  sale  anew  the 
thing  seized,  and  adjudge  it  to  another  person. 

2  L.  360  ;  3  L.  475  ;  4  L.  396  ;  7  R.  406 ;  8  R.  450  ;  10  R.  89 ;  see  719. 

Art.  690. — The  adjudication  thus  made,  has  of  itself  alone, 
the  effect  of  transferring  to  the  purchaser  all  the  rights  and 
claims  which  the  party  in  whose  hands  it  was  seized,  might 
have  had  to  the  thing  adjudged. 

5  N.  S.  220  ;  7  N.  S.  227  ;  1  L.  44;  4  L.  341 ;  10  L.  453;  17  L.  494  ;  6  R.  100, 
107;  8  R.  450;  9  R.  405,  414;  11  R.  124,  270;  1  A.  426  ;  11  L.  284;  13.L.  290; 
15  L.  385;  19  L.  235. 


OF   THE    EXECUTION   OF    JUDGMENTS,    ETC.  247 

Art.  691. — Within  three  days  after  the  adjudication,  the 
sheriff  shall  pass  an  act  of  sale  to  the  purchaser  of  the  property 
or  eflects  adjudged  by  him,  in  the  manner  and  form  hereafter 
directed. 

6  R.  100. 

Art.  692. — 'This  act  of  sale  must  be  made  by  and  in  the 
name  of  the  sheriff  of  the  parish  where  the  seizure  was  made 
be  signed  by  him  in  his  official  capacity,  with  a  mention  of 
the  place,  the  day,  the  month,  and  the  year  in  which  it  was 
passed. 

3  L.  422. 

Art.  693. — This  act  must  make  mention, 

1.  Of  the  wi'it  by  virtue  of  which  the  object  has  been  seized 
and  sold  ; 

2.  Of  the  title  of  the  cause  in  which  the  writ  has  been 
issued  ; 

3.  Of  the  names  and  surnames  of  the  defendant,  plaintiff 
and  purchaser  ; 

4.  Of  the  nature  of  the  object  sold,  with  a  description  of  it, 
as  well  as  of  the  price  and  conditions  on  which  it  has  been 
adjudged  ; 

5.  Of  the  manner  in  which  the  purchaser  has  paid  the  price, 
or  bound  himself  to  discharge  it  ; 

6.  Of  the  amount  of  the  privileges  or  mortgages  with  which 
the  property  adjudicated  is  incumbered,  and  which  were  made 
known  at  the  time  of  the  adjudication  ; 

7.  And  finally,  of  the  special  mortgage  which  he  has  given 
to  secure  the  payment  of  the  price,  where  the  sale  has  been 
made  on  a  credit. 

7  R.  398. 

Art.  694. — The  sheriff  shall  conclude  this  act,  by  selling 
and  transferring  to  the  purchaser,  all  the  right  which  the  for- 
mer owner  had  in  the  thing  sold,  pursuing  the  same  forms  as 
in  ordinary  sales. 

1  N.  S.  227 ;  8  N.  S.  337 ;  1  A.  426. 


248      OF  THE  EXECUTION  OF  JUDGMENTS,  ETC. 

Art.  695. — This  act  of  sale  adds  nothing  to  the  force  aud 
effect  of  the  adjudication,  but  is  only  intended  to  afford  the 
proof  of  it. 

Consequently,  if  the  sheriff  has  omitted  any  of  the  forraali-  ^ 
ties  above  prescribed,  the  adjudication  shall  not  be  void  (in  that 
account,  if  it  otherwise  appear  that  it  was  made  by  virtue  of 
a  legal  authority,  and  with  all  the  forms  requisite  for  its  va- 
lidity. 

Stat.  10th  March,  1834,  p.  125.— An  Act  for  the  fur- 
ther assurance  of  titles,  to  purchasers  at  judicial  sales. — 
§  1.  The  purchasers  of  property  at  sheriff"'s  sales,  those  made  by 
the  authority  of  the  court  of  probates,  those  made  by  the  syn- 
dics of  insolvent  estates,  and  finally  those  of  any  kind  and  de- 
scription which  are  made  by  the  authority  of  justice,  may  protect 
themselves  from  eviction  of  the  property  so  purchased,  or  from 
any  responsibility  as  jiossessors  of  the  same,  by  pursuing  the 
rules  hereinafter  prescribed. 

§  2.  It  shall  be  the  duty  of  said  purchasers,  if  the  purchase 
has  been  made  wdthin  the  limits  of  the  city  and  parish  of  New 
Orleans,  to  publish  three  times  in  two  of  the  newspapers  print- 
ed in  the  city  in  French  and  English  :  or  if  the  sale  has  been 
out  of  the  limits  of  the  parish  and  city  aforesaid,  then  he  shall 
pubhsh  the  same  for  the  space  of  time  and  in  the  same  langua- 
ges, in  the  newspaper  which  is  printed  nearest  to  the  place 
where  the  sale  takes  place,  a  monition  calling  on  all  persons 
who  can  set  up  any  right  to  the  property  in  consequence  of  in- 
formality in  the  order,  decree,  or  judgment  of  the  court  under 
which  the  sale  was  made,  or  any  irregularity  or  illegality  in 
the  appraisements  and  advertisements  in  time  or  manner  of 
sale,  or  for  any  other  defect  whatsoever,  to  show  cause  within 
thirty  days  from  the  day  the  monition  is  first  inserted  in  the 
public  papers,  why  the  sale  so  made,  should  not  be  confirmed 
and  homologated. 

§  3.  This  monition  shall  state  the  judicial  authority  under 
which  the  sale  took  place,  and  shall  also  contain  the  same  de- 
scription of  the  property  purchased  as  that  given  in  the  judi- 


OF  THE  EXECUTION  OF  JUDGMENTS^  ETC.      249 

cial  conveyance  to  the  buyer,  and  shall  further  declare  the  price 
at  which  the  object  was  bought. 

§  4.  The  clerks  of  the  respective  courts  from  which  the 
orders,  decrees  or  judgments  may  have  issued,  and  in  \drtue  of 
wliicli  the  sales  ought  to  be  homologated,  have  been  made,  shall 
on  application  of  the  buyer,  grant  this  monition  in  the  name 
of  the  State,  and  affix  to  it  the  seal  of  the  court. 

§  5.  On  the  expiration  of  the  thirty  days  mentioned  in  the 
second  section  of  this  act,  the  party  obtaining  the  monition, 
may  apply  to  the  judge  of  the  court,  out  of  which  said  moni- 
tion issued  to  confirm  and  homologate  the  sale.,  and  it  shall  be 
the  duty  of  the  judge  in  case  no  cause  is  shown  against  the 
prayer  of  the  monition,  to  homologate  and  confirm  the  judicial 
sale  in  question  :  provided,  always,  that  before  he  does  so  con- 
firm it,  he  shaU  be  fully  satisfied  that  the  advertisements  have 
been  inserted  in  the  newspapers  as  already  directed,  and  that 
the  property  has  been  correctly  described,  and  the  price  at 
which  it  was  purchased,  truly  stated  :  but  in  case  opposition 
be  made  to  the  homologation,  and  it  should  appear  the  sale 
was  made  contrary  to  law,  it  shall  then  be  the  duty  of  the 
judge  to  annul  it,  otherwise  to  confirm  it,  as  in  case  no  oppo- 
sition was  made. 

§  6.  The  judgment  of  the  court  on  the  monition  aforesaid, 
shall  be  in  itself  conclusive  evidence,  that  the  monition  has 
been  regularly  made,  and  duly  advertised,  nor  shall  any  evi- 
dence be  received  thereafter  to  contradict  the  same,  or  to 
prove  any  irregularity  in  the  i^roceeding. 

§  7.  The  judgment  of  the  court  confirming  and  homologat- 
ing the  sale,  shall  have  tlie  force  of  res  judicata,  and  operate 
as  a  complete  bar  against  all  persons  whether  of  age,  or  mi- 
nors, whether  present  or  absent,  who  may  thereafter  claim  the 
property  sold  in  consequence  of  an  illegahty  or  informahty  in 
the  proceeding  whether  before  or  after  judgment,  and  the  said 
judgment  of  homologation  shall  in  all  cases  be  received  and 
considered  as  fuU  and  conclusive  proof,  that  the  sale  was  duly 
made  according  to  law,  in  virtue  of  a  judgment  or  order  legally 


250  OF    THE    EXECUTION    OF   JUDGMENTS,    ETC. 

and  regularly  pronounced  on  the  interest  of  parties  duly  rep.> 
resented. 

§  8.  Nothing  contained  in  this  act  shall  be  taken  or  un- 
derstood so  as  to  render  valid  any  sale  made  in  virtue  of  judg- 
ment where  the  party  cast  was  not  duly  cited  to  make  defence, 
and  that  in  every  case  where  minors  are  interested  they  shall 
have  their  recoui-se  on  their  tutors  or  curators,  if  said  tutors 
or  curators  have  improperly  neglected  to  make  opposition  to 
the  confirmation  of  the  sale  of  their  property. 

§  9.  When  no  opposition  is  made  to  the  confirmation  of 
the  sales,  the  costs  attending  the  proceedings  shall  be  paid  by 
the  party  who  pays  for  the  monition  ;  and  where  o})position  is 
made,  tlie  costs  shall  be  borne  by  the  party  against  whom 
judgment  is  rendered. 

§  10.  Nothing  contained  in  this  act  shall  be  construed  or 
understood  to  authorize  the  jjurchaser  at  a  judicial  sale,  to  re- 
fuse carrying  the  same  into  effect,  or  to  delay  the  papnent  of 
the  price  for  any  greater  space  of  time  than  is  now  allowed  by 
law  ;  and  in  case  the  said  purchaser  shall  not  deem  it  neces- 
sary to  use  the  remedy  conferred  by  this  act  to  assure  his  title, 
then  the  said  sale  shall  have  the  same  effect  as  is  now  given 
to  it  by  the  existing  laws  of  the  State. 

Stat.  Wtli  March,  1837,  p.  62.  An  act  to  amend  an  act 
entitled  "an  act  for  the  further  assurance  of  titles  to  purchas- 
ers at  judicial  sales"  ajjproved  March  \Qth,  1834. — Hereafter 
not  only  the  actual  purchasers  of  property  at  sheriffs'  sales, 
those  made  by  the  authority  of  the  court  of  probates,  those 
made  by  the  syndics  of  insolvent  estates,  and  finally  those  of 
any  kind  and  description  wliich  are  made  by  the  authority  of 
justice,  but  all  subsequent  purchasers  holding  under  such 
actual  j)urchasers  by  a  regular  chain  of  title,  shall  be  allowed 
to  avail  themselves  of  the  benefits  conferred  u2)on  actual  pur- 
chasers by  the  said  act,  approved  March  tenth,  one  thousand 
eight  hundred  and  tliirty-four. 

Stat.  12th  March,  1838,  p.  98.  An  act  to,  amend  an  act 
for  the  further  assurance  of  titles  to  purchasers  at  judicial 


OF    THE    EXECUTION    OF    JUDGMENTS,    ET/.  251 

sales,  approved  10th  March,  1834. — The  provisions  of  said  act 
shall  be  extended  to  tax  sales,  and  any  one  interested  may  ap- 
ply to  the  clerk  of  the  district  court  of  tlie  parish  wherein  the 
property  may  he  situated  for  a  monition  in  order  to  enable  such 
person  to  have  any  tax  sale  of  property  perfected,  which  sale 
shall  bo  homologated  by  the  district  court  in  the  same  manner, 
and  upon  the  same  conditions  that  said  court  may  homologate 
judicial  sales  ui\der  the  provisions  of  the  ^aid  act.  And  the 
publications  required  shall  be  made  in  some  newspaper  j)rinted 
in  (or  if  none  be)  in  one  nearest  the  parish  in  which  the  pro- 
perty shall  be  situated  ;  provided  that  no  tax  shall  be  confirmed 
under  the  provisions  of  this  act,  unless  such  sale  shall  have 
been  made  ten  years  prior  to  the  apphcation  for  a  monition. 

Stat.  12th  3Iarch,  1838,  p.  98.  The  act  entitled  "  an  act 
for  the  further  assurance  of  titles  to  purchasers  at  judicial 
sales,"  approved  March  tenth,  eighteen  hundred  and  tliirty- 
four,  and  all  the  acts  amendatory  of  the  same,  shall  be  so 
amended,  that  it  shall  not  hereafter  be  necessary  in  the 
ninth  judicial  district,  composed  of  the  parishes  of  Con- 
cordia, Tensas,  Madison,  and  Carroll,  as  well  as  the  pa- 
rishes of  St.  Helena,  Washington,  and  Sabine,  to  publish 
monitions  in  the  French  language,  and  that  their  publication 
in  the  English  language,  shall  have  the  same  effect  as  if 
published  in  both  languages. 

4  L.  344  ;  10  L.  522  ;  11  L.  437,  438  ;  9  R.  405  ;  see  692,  693. 

Art.  696. — If  this  act  of  sale  includes  a  special  mortgage, 
to  secure  the  payment  of  the  price  stipulated,  the  sheriff  shall 
have  it  recorded,  before  sending  it  to  the  clerk,  as  is  directed 
in  the  foUowng  article. 

Art.  G97. — The  sheriff  shall,  within  ten  days  at  farthest 
from  the  adjudication,  deliver  or  direct  to  the  clerk  of  the 
court  which  issued  the  writ  of  fieri  facias,  the  original  of  the 
act  of  sale  which  he  has  passed  to  the  purchaser,  for  the  ob- 
ject sold  to  him,  whether  on  credit,  or  for  cash,  and  it  shall  be 
the  duty  of  the  clerk  to  record  this  act  hterally  in  a  record  to 
be  kept  by  him  for  tliat  jnirpose,  and  to  indorse  on  the  origi- 
nal his  certificate  of  the  registry. 


252  OF    THE    EXECUTION    OF    JUDGMENTS,    ETC. 

Stat.  lOth  February,  1841,  p.  17.— §  13.  It  shall  be  the 
duty  of  said  sheriffs  to  cause  to  be  recorded  in  the  conveyancee 
office,  in  the  city  of  New  Orleans,  all  judicial  sales  of  real 
property  and  slaves  made  by  them,  besides  hanng  said  sales  re- 
corded in  the  clerk's  office,  as  is  now  required  by  law. 

3  N.  S.  493 ;  3  L.  422 ;  6  L.  627  ;  8  L.  423 ;  3  R.  IGO. 

Art.  698. — This  act,  thus  recorded,  and  delivered  to  the 
purchaser,  shall  be  held  as  full  proof  of  what  it  contains,  in 
aU  the  courts  of  this  State,  in  the  same  manner  as  an  act  be- 
fore a  notary  would  be. 

Stat.  25th  March,  1828,  p.  154.— §  11.  From  and  after 
the  passing  of  this  act,  a  copy  of  any  sale  or  deed  of  convey- 
ance, heretofore  made  and  executed,  or  which  may  hereafter 
be  made  and  executed,  by  any  sheriff  or  any  other  person  ex- 
ercising and  performing  the  duties  of  sheriff'  in  tliis  State,  or 
by  the  city  marshal  of  New  Orleans,  certified  to  be  a  correct 
copy  by  the  clerk  or  deputy  clerk  of  the  court  in  whose  office 
such  sale  or  deed  of  conveyance  is  or  may  be  recorded,  shall' 
be  received  as  evidence  in  the  same  manner  and  have  the  same 
effect  in  every  respect  as  a  duly  certified  copy  of  an  authentic 
act ;  and  if  the  original  of  any  such  sale  or  deed  of  conveyance 
has  been  lost  or  mislaid,  without  the  same  having  been  recorded 
in  the  office  of  the  parish  judge  of  the  parish  in  which  such 
sale  or  deed  of  conveyance  has  been  made  and  executed,  then, 
a  copy  of  the  same,  certified  as  aforesaid,  being  recorded  in 
such  office,  shall  have  the  same  effect  in  every  respect,  from 
the  time  the  same  shall  be  recorded,  as  if  the  original  had 
been  recorded :  provided,  howcMier,  that  the  affidavit  of  any 
person  interested,  in  having  such  sale  or  deed  of  conveyance 
recorded,  shall  be  deemed  sufficient  to  establish,  that  the  same 
has  been  lost  or  mislaid,  and  authorize  the  recording  of  a  copy 
of  the  same  as  aforesaid,  and  that  the  city  marshal  of  the 
city  of  New  Orleans  shall  pass  his  deeds  of  conveyance  in  the 
same  manner  as  the  sheriff's  of  this  State. 

9  L.  181;  10  L.  522;  11  L.  490;  3  R.  ICO. 

Art.  699. — The  sheriff  shall  set  down  in  a  book  kept  by 


OF  THE  EXECUTION  OF  JUDGMENTS,  ETC.      253 

him  for  the  purpose,  an  exact  account  of  all  sales  made  by 
him  on  seizures,  and  in  the  account  he  shall  make  mention  of 
the  sale,  the  articles  sold,  the  name  of  the  purchaser  and  of 
the  price  due  or  paid  by  bim.  This  book  shall  be  open  to  the 
inspection  of  all  persons  interested,  who  shall  Avish  to  exam- 
ine it. 

Akt.  700. — The  sheriff  who  has  made  a  seizure  and  sale, 
within  thirty  days  at  the  farthest,  from  that  on  which  he  re- 
ceived the  writ,  if  he  has  sold  only  movable  eifects,  and  within 
seventy  days  from  the  same  time,  if  they  be  slaves,  ships, 
steamboats,  or  immovables  that  he  has  sold,  if  so  long  a  time 
has  been  necessary  to  effect  a  sale,  shall  deliver  or  direct  to 
the  clerk  of  the  court  the  original  of  the  writ,  on  wliich  he 
shall  indorse  a  return,  signed  by  himself,  of  the  manner  in 
which  he  has  executed  it,  as  is  directed  hereafter. 

However,  the  delay  for  making  tliis  return  does  not  run, 
but  is  suspended,  if  the  judge  enjoins  the  sheriff  not  to  pro- 
ceed in  the  sale   so  long  as  the  injunction  continues. 

1  N.  S.  20G;  8  N.  S.  392;  3  L.  4;  6  L.  631  ;  7  L.  176  ;  8  L.  256  ;  11  L.  38  ; 
3  R.  355 ;  see  amendment  to  art.  642. 

Art,  701. — But  if  the  sheriff  has  bcBn  able  to  sell  the 
property  seized,  before  the  expiration  of  the  time  allowed  liim 
in  the  preceding  article,  he  shall  immediately  after  the  sale,  re- 
turn to  the  clerk  of  the  court  the  original  writ,  and  his  report 
as  above  directed. 

3  N.  S.  496. 

Art.  702. — In  his  return  the  sheriff  shall  specify  the  ob- 
ject seized  and  sold,  and  shall  declare  whether  the  sale  was 
made  for  ready  money  or  on  credit,  who  was  the  purchaser,  at 
what  price,  and  on  what  conditions. 

1  L.  44. 

Art.  703. — When  the  sale  has  been  made  on  a  credit  of 
twelve  months,  on  account  of  the  object  sold  not  having  been 
carried  to  two-thirds  of  its  appraised  value,  at  the  first  crying, 
the  sheriff  must  dispose  of  the  bond  with  security,  which  he 


254         OF    THE    CONSEQUENCE    OF    THE    ADJUDICATION. 

has  caused  to  be  executed  by  the  purchaser,  in  the  manner 
directed  in  the  following  paragraph. 

See  681. 


§  2. —  Of  the  Consequence  of  the  Adjudication,  and  of  the  Payment  of 

the  Price. 

Art.  704. — When  the  sheriff  has  sold  for  ready  money,  he 
shall  on  simple  demand,  pay  to  the  judgment  creditor,  or  liis 
attorney,  the  sum,  com^g  to  him  from  the  price  of  adjudica- 
tion, unless  the  court  enjoins  him  not  to  make  the  j^ayment  ; 
and  if  there  remain  a  surplus,  after  the  suing  creditor  is  paid, 
as  well  as  the  costs,  the  sheriff  shall  deliver  such  surplus  to  the 
debtor. 

4N.S.  14G;  6L.  138;  10  L.  480;  5R.  272. 

Art.  705. — If  the  sale  has  begn  made  on  a  credit,  either 
for  the  whole  or  a  part,  and  payable  in  notes,  by  virtue  of  a 
permission  to  that  effect,  granted  by  the  parties,  the  sheriff 
shall  take  from  the  purchaser  separate  notes  for  the  portions 
respectively  coming  to  them,  and  shall  dehver  the  notes  in  the 
same  manner  as  when  the  sale  is  made  for  ready  money. 

0  N.  S.  472;  see  681. 

Art.  706. — But  when  the  property  sold  is  subject  to  privi- 
leges or  special  mortgages  in  favor  of  other  persons  besides  the 
suing  creditor,  the  sheriff  shall  require  from  the  purchaser,  and 
he  shall  be  comi)elled  to  dehver  to  the  creditor,  whether  the  sale 
be  made  for  ready  money,  or  on  credit,  only  the  surplus  of  price, 
beyond  the  amount  of  the  privileges  or  special  mortgages,  if 
there  be  any  surplus. 

5  R.  272 ;  6  R.  407. 

Art.  707. — On  the  other  hand,  if  the  suing  creditor  him- 
self has  a  privilege  or  special  mortgage  which  is  preferable  or 
anterior  to  other  mortgages  existing  on  the  property  sold,  the 
sheriff  shall  require  of  the  purchaser,  the  payment  of  the  price, 
to  the  amount  of  the  privilege  or  special  mortgage  of  the  seiz- 


OF  THE  CONSEQUENCE  OF  THE  ADJUDICATION.    255 

ing  creditor,  and  tlie  purchaser  shall  apply  the  surplus  of  the 
price,  if  there  be  any,  to  paying  the  special  inprtgages  existing 
on  the  property,  subsequent  to  that  ofi  the  suing  creditor. 

5  R.  272;  G  R.  407  ;  7  R.  39i  ;  8  R.  l75'. 

Art.  708. ^The  purcnaser  is  hour  i  for  nothing  beyond  the 
price  of  liis  adjudication,  and  if,  after  ]  a}ang  the  suing  creditor, 
as  directed  in  the  j)reccding  article, 
more  due,  to  discharge  the  mortgasics 


there  remains  nothing 
lubsequent  ti»  that  of  the 


suing  creditor,  the  sheriff  shall  give  hlin/a  rcleaiCe  from  these 


mortgages, 

2L.  650;  3  L.  212;  G  L.  451;  5  R.  347;  G  R.^16;  8^R.  97,  175;  9R.72; 
1  A.  10,  16. 

Art.  709. — The  hypothecary  action  lies  against  the  pur- 
chaser of  a  property  seized,  which  is  subject  to  privileges  or 
mortgages  in  favor  of  such  creditors  as  have  ^id  privileges  and 
mortgages,  in  the  same  manner  and  under  the  same  rules  and 
restrictions  as  are  applicable  to  a  third  possessor  of  a  mortgaged 
property. 

3  R.  IGO;  3  A.  542. 

Art.  7K). — If  there  exist  a  general  mortgage  on  the  pro- 
perty, resulting  either  from  a  legal  or  judicial  mortgage,  the 
purchaser  cannot  avail  himself  of  this  mortg}jige,  although  it  be 
duly  recorded,  to  retain  part  of  the  price  for  the  purpose  of  pay- 
ing it,  or  to  refuse  paying  the  jiricc,  if  that  has  not  been  already 
done,  unless  there  has  been  a  suit  commenced  against  him,  in 
virtue  of  this  general  mortgage,  to  make  him  quit  the  property, 
or  unless  he  has  just  reason  to  fear  that  such  a  step  will  be  taken 
in  which  case  he  may  retain  the  price,  unless  the  suing  credi- 
tor shall  relieve  him  from  tliis  disturbance,  or  give  him  proper, 
security  against  it. 

SN.  S.  221;  5N.  S.  48;  5N.  S.  81;  5  L.  279;  3  R.  5  ;  4  R.  112;  5  R.  496;  7  R. 
398 ,  8  R.  175 ;  9  R.  414  ;  1  A.  219  ;  2  A:  384  ;  5  A.  736. 

Art.  711. — However,  if  the  purchaser  has  been  evicted  from 
the  thing  adjudged  to  liim,  on  the  gr*(md  that  it  belongs  to 
another  person  than  the  party  in  whose  hands  it  was  taken,  he 
shall  in  that  case,  have  his  recourse  for  reimbursement  against 


256         OF    THE    CONSEQUENCE    OF    THE    ADJUDICATION. 

the  seized  debtor  and  the  seizing  creditor  ;  but  upon  the  judg- 
ment obtained  jointly  for  that  purpose,  the  purchaser  shall  first 
take  execution  against  the  debtor,  and  upon  the  return  of  such 
execution,  no  property  found,  then  he  shall  be  at  liberty  to  take 
out  execution  against  the  creditor. 

5  N.  S.  81 ;  6  L.  tJZI ;  5  R.  247  ;  9  K.  206 ;  10  R.  65  ;  11  R.  522 ;  2  A.  479. 

Art.  712. — The  suing  creditor  shall  be  allowed  his  action 
against  the  party  in  execution,  for  the  reimbursement  of  what- 
ever he  shall  have  been  thus  obliged  to  pay  to  the  purchaser, 
upon  the  return  of  the  execution,  no  property  found  belonging 
to  the  debtor. 

Art.  713. — On  the  other  hand,  if  the  purchaser  is  obliged 
to  quit  the  property  sold  to  him,  on  the  hypothecary  action  of 
the  creditor  who  had  a  legal  or  judicial  mortgage,  on  all  the 
property  of  the  party  in  execution,  or  if  he  has  paid  the  amount 
of  such  mortgage  to  avoid  being  dispossessed,  he  shall  only 
have  recourse  to  the  party  in  execution,  and  not  to  the  suing 
creditor. 

3  R.  5;  5  R.  496;  11  R.  522. 

Art.  714. — The  purchaser  shall  even  lose  the  redress  grant- 
ed by  the  two  preceding  articles,  if  an  action  is  instituted  against 
him,  for  the  purpose  of  evicting  him,  and  he  neglects  to  give 
notice  of  it  to  the  party  from  whom  the  property  was  seized, 
provided  this  party  possessed  the  means  of  repelhng  the  de- 
mand, if  informed  of  its  having  been  made. 

5  R.  496. 

Art.  715. — The  purchaser  against  whom  a  suit  is  com- 
menced by  a  creditor  having  a  legal  and  judicial  mortgage  on 
the  property  of  the  debtor  sued,  may  require  the  creditor  to 
discuss  the  other  property  which  the  debtor  has  in  his  posses- 
sion, and  even  that  which  he  has  alienated  since  the  })urchase, 
because  the  creditor  who  has  a  general  mortgage  can  only  act 
against  the  property  of  which  liis  debtor  has  disposed,  in  the 
order  in  which  alienations  have  been  made,  beginning  at  the 
most  recent,  and  ascending  to  the  most  ancient. 

6  N.  S.  103 ;  7  L.  305 ;  6  R.  496 ;  6  R.  51 ;  8  R.  176  ;  10  R.  68. 


OF    THE    CONSEQUENCE    OF    THE    ADJUDICATION.  257 

Art.  716. — When  the  sale  has  been  made  on  twelve 
months'  credit,  by  reason  of  the  property  not  having  been  bid 
for  at  two-thirds  of  the  appraisement,  if  the  whole  price  be 
coming  to  the  judgment  creditor,  including  interest  and  costs, 
as  provided  for  in  the  preceding  paragraph,  the  sheriff  shall  re- 
quire from  the  purchaser  his  bond  with  security,  for  the  bene- 
fit of  the  judgment  creditor,  and  shall,  if  required,  deliver  the 
bond  to  the  latter,  on  his  papng  all  the  costs  wliicli  are  due. 

3  L.  25;  2^V.  407. 

Art.  717. — But  if  there  be  several  judgment  creditors,  or 
if  a  portion  of  the  purchase-money  is  to  be  paid  over  to  the 
debtor,  the  sheriff  shall  take  from  the  purchaser  as  many  bonds 
as  may  be  necessary  to  deliver  to  each  party  his  just  portion, 
after  deducting  costs. 

8  R.  .5. 

Art.  718. — If  the  purchaser  has  bought  a  property  subject 
to  privileges  or  special  mortgages,  the  sheriff  can  only  require 
his  bond  with  security,  for  the  suq:)lus  of  price,  after  deducting 
the  amount  of  these  privileges  or  special  mortgages. 

See  679. 

Art.  719. — If  the  purchaser  who  has  given  his  bond  with 
security,  refuse  or  neglect  to  pay  it  when  due,  together  with 
the  interest,  the  clerk  who  first  issued  the  order  of  seizure, 
shall,  on  the  demand  of  the  judgment  creditor,  or  any  other 
person  interested,  and  on  the  bond  being  dchvercd  to  him,  is- 
sue an  execution  for  the  amount^  both  against  the  purchaser 
and  his  surety,  in  the  same  manner  as  on  -a  final  judgment ; 
and  this  execution  shaU  be  directed  to  tHe  sheriff,  to  be  carried 
into  effect. 

4  R.  181  ;  10  R.  154 ;  2  A.  239  ;  4  A.  36 ;  see  689 

Art.  720. — If  the  amount  of  the  bond,  with  interest  and 
costs,  be  not  paid  to  him  on  demand,  it  is  the  duty  of  the 
sheriff,  under  this  execution,  to  seize  immediately  the  i)roperty 
of  the  purchaser,  or  of  the  surety,  or  of  both,  to  the  amount 
of  the  debt  and  costs,  and  to  sell  them  for  ready  money,  after 
17 


258        OF    THE   CONSEQUENCE    OF    THE    ADJUDICATION. 

the  advertisements  directed  above,  but  with  the  modifications 
contained  in  the  following  article. 

Stat.  7t7i  April,  1826,  p.  174.— §  14.  The  foUowing  words 
in  article  seven  hundred  and  twenty,  to  wit :  "  after  the  adver- 
tisements directed  above,  but  with  the  modifications  contained 
in  the  following  article,"  be  repealed  ;  and  that  the  whole  of 
article  seven  hundred  and  twenty-one  be,  and  the  same  is  here- 
by repealed. 

§  15.  It  shall  be  the  duty  of  the  clerk  who  issues  the  exe- 
cution according  to  the  provisions  of  article  seven  hundred  and 
twenty,  to  indorse  thereon,  that  the  same  issued  on  a  twelve 
months'  bond,  and  that  the  property  to  be  seized  under  the 
same,  shall  be  sold  for  whatever  it  will  bring  in  cash,  and  it 
shall  be  the  duty  of  the  sheriff  to  execute  the  same  by  seizing 
the  property  of  the  principal  or  security,  or  both,  and  to  seU 
the  same  for  whatever  it  will  bring  in  cash  after  making  the 
advertisements  required  by  law. 

7  N.  S.  194;  4  R.  181  ;  2  A.  239. 

Art.  721. — Property  seized  on  execution  issued  on  a 
twelve  months'  bond,  shall  not  be  sold  for  less  than  one-half 
of  its  appraised  value  ;  the  appraisement  to  be  made  in  the 
manner  prescribed  for  appraisements  on  the  primary  seizure. 

See  ante,  720,  and  682  ;  where  the  acts  repealing  this  article  will  be  found. 

Art.  722. — The  creditor,  by  the  mere  act  of  seizure,  is  in- 
vested with  a  privilege  on  the  movable  and  immovable  pro- 
perty thus  seized,  which  entitles  him  to  a  preference  over  other 
creditors,  unless  the  debtor  has  become  bankrupt,  previous  to 
the  seizure. 

7  L.  487  ;   3  R.  lOG,  219,  276 ;   6  R.  152,  268, .345 ;   8  R.  450;   12  R.  8 ;  3  A. 

40,  436. 

Art.  723. — When  several  successive  seizures  are  made  of 
the  same  property,  the  creditors  making  them  are  entitled  to 
a  preference  over  other  ordinary  creditors,  according  to  the  or- 
der of  their  seizures. 

6  R.  345 ;  3  A.  430. 


OF    IMPRISONMENTS    ON    JUDGMENT.  259 

Ari  724. — Provisional  seizures  and  sequestrations  give  no 
privilege  to  those  who  have  made  them,  until  they  have  ob- 
tained a  j  tdgment  and  order  of  execution  on  the  property  se- 
questered or  provisionally  seized. 

3  L.  183  ;  4  L.  224 ;  8  L.  42  ;  6  A.  444  ;  see  275,  289. 

Art.  725. — But  the  provisional  seizure  in  executory  pro- 
ceedings and  in  actions  in  rem,  gives  the  same  pri\ilege  as  the 
seizure  in  execution. 

See  292. 

Sec.  IV. — 0/  Imprisonments  on  Judgment. 

Art.  726. — When  the  sheriff  to  whom  an  execution  is  di- 
rected, can  find  no  property  to  seize,  he  may  call  upon  the 
party  against  whom  the  execution  is  awarded,  to  point  out  to 
him  property  wliich  he  may  possess  in  the  parish. 

10  R.  136  ;  2  A.  407. 

Art.  727. — If,  on  this  application,  the  debtor  shows  him 
no  property,  and  the  judgment  creditor  is  unable  to  point  out 
any,  the  sheriff  shall  return  the  execution  into  court,  after  in- 
dorsing on  it  a  report  signed  by  him,  in  which  he  shaU  declare 
that  he  has  found  no  property  to  seize,  notwithstanding  the 
demand  made  of  the  parties. 

4  L.  301  ;  6  L.  63;  10  R.  136;  2  A.  407. 

Art.  728. — If,  after  this  report,  the  judgment  creditor  dis- 
covers any  property  belonging  to  his  debtor,  he  may  obtain  a 
new  execution,  to  be  carried  into  effect  in  the  same  manner  as 
the  one  first  issued. 

Art.  729. — If,  on  the  contrftry,  the  judgment  creditor  can 
find"  no  property  belonging  to  his  debtor,  he  may  demand  of 
the  clerk,  and  it  shall  be  the  duty  of  that  officer  to  deliver  to 
him  an  order  to  imprison  the  body  of  tlie  debtor  (a  cajoias  ad 
satisfacienduin)  until  he  shall  have  made  a  cession  of  property 
to  his  creditors,  and  have  obtained  a  discharge  in  conformity 
to  the  provisions  of  an  act  entitled  "  an  act  for  the  relief  of 
insolvent  debtors  who  are  in  confinement,  &c." 


260  OF    IMPRISONMENTS    ON    JUDGMENT. 

Stat  28t7i  March,  1840,  p.  131.— §  1.  The  writ  of  capias 
ad  satisfaciendum  be  and  the  same  is  hereby  abolished. 

§  3.  In  all  cases  of  arrest  imder  a  writ  of  arrest,  the  con- 
dition of  the  bond  shall  be  that  the  security  shall  be  resjionsi- 
ble  in  case  the  principal  foils  to  pay  the  .judgment  obtained 
against  him,  and  the  plaintiff  shall  be  entitled  to  judgment 
against  the  security  on  such  obligation,  on  the  return  of  "  no 
property  found"  on  the  writ  oi  fieri  facias,  on  giving  ten  days 
notice  to  such  security  as  provided  for  by  law. 

§  4.  No  debtor  shall  hereafter  be  held  in  imprisonment 
under  a  writ  of  arrest,  for  a  term  exceeding  three  months,  pro- 
vided that  if  the  debtor  reside  within  the  State  of  Louisiana,  be 
shall  at  the  expiration  of  sucli  time,  if  so  required  by  the  com- 
plaining creditor,  be  ordered  by  the  court  to  surrender  his 
property  to  bis  creditors ;  which  order  shall  be  rendered  on  the 
petition  of  such  creditor,  setting  forth  the  facts  and  stating 
under  oath  that  he  has  reason  to  believe  that  such  debtor  is 
possessed  of  property  or  assets  which  may  be  made  available 
to  bis  creditors ;  and  such  debtor  shall  not  be  discharged  from 
imprisonment  until  he  shall  have  filed  in  the  court  from  wliich 
the  order  of  arrest  issued  a  schedule  of  his  affairs  and  surren- 
dered liis  property  to  his  creditors ;  that  said  schedule  shall 
be  made  and  all  the  proceedings  in  such  surrender  shall  be 
had  and  conducted  in  conformity  with  the  provisions  of  the 
act  entitled  "  an  act  for  the  relief  of  insolvent  debtors  in  actual 
custody,  and  for  establishing  prison  bounds  fur  the  public  jail 
and  for  other  purposes"  approved  March  twenty-fifth,  eighteen 
hundred  and  eight,  and  of  the  act  amendatory  of  and  supple- 
mentary to  said  act,  and  the  provisions  of  this  section  shall 
apply  to  debtors  now  in  imprisonment  under  writs  of  ariTCst. 

§  5.  Whenever  two  or  more  final  judgments,  each  for  a  sum 
exceeding  three  hundred  dollars,  shall  have  been  rendered 
against  a  debtor  and  execution  issued  thereon  and  returned 
"  no  property  found,"  and  the  plaintiffs  shall  unite  in  a  petition 
setting  forth  under  oath  that  they  have  reason  to  believe  that 
the  defendan',  has  property,  rights  or  assets  of  some  descrip- 


OF   IMPRISONMENTS    ON   JUDGMENT.  261 

fcion  within  the  State  of  Louisiana  which  may  be  made  avail- 
able to  liis  creditors,  the  court  shall  order  such  defendant  to 
show  cause  within  ten  days  wliy  he  should  not  pay  the  amount 
of  such  judgment,  or  in  default  of  such  jxaymcnt,  why  he 
should  not  make  a  surrender  of  his  property  to  his  creditors, 
and  in  case  said  judgments  arc  not  satisfied  on  or  before  the 
return  day  of  said  order  to  show  cause,  the  court  may  if 
satisfied  with  the  showing,  render  judgment  on  said  petition, 
ordering  the  defendant  to  file  in  court  within  a  reasonable 
time  to  be  fixed  by  the  court,  a  schedule  of  his  affjiirs  and  to 
surrender  his  property  to  his  creditors ;  which  schedule  shall 
in  all  things  be  made  conformably  to  the  laws  now  in  force 
relative  to  the  voluntary  surrender  of  property,  and  all  tlie  pro- 
ceedings had  in  such  matter  shall  be  conducted  as  provided  foi 
by  said  laws ;  provided  that  if  such  judgments  shall  have  been 
rendered  by  the  city  court  of  New  Orleans,  the  judgment 
creditors  shall  address  their  petition  either  to  the  parish,  dis- 
trict, or  commercial  courts. 

§  6.  In  case  such  debtor  shall  fiiil  or  refuse  to  comply 
with  the  judgment  of  the  court,  ordering  surrender  within 
the  delay  fixed,  the  court  shall  on  motion  order  such  debtor 
to  prison  there  to  remain  until  he  shall  have  compUed  Avith 
such  judgment. 

§  7.  In  case  any  debtor  who  shall  have  surrendered  his 
property  under  this,  or  any  other  act  shall  be  convicted  of 
fraud,  he  shall  be  sentenced  by  the  court  to  sufi'er  imprison- 
ment for  a  term  not  exceeding  three  years. 

§  8.  All  debtors  now  in  actual  custody,  shall  be  discharged 
therefrom  on  the  tenth  May,  eighteen  hundred  and  forty ;  pro- 
\'ided  that  there  be  no  charge  of  fraud  pending  and  undecided 
against  them ;  provided  further  that  when  a  debtor  has  not 
been  convicted  of  fraud,  a  charge  of  fraud  may  still  be  made 
against  him. 

§  9.  No  citizen  of  another  State  shall  hereafter  be  arrested 
in  this  State,  at  the  suit  of  a  non-resident  creditor,  except  in 
cases  where  it  shall  be  made  to  appear  that  the  debtor  has  ab- 
sconded from  his  residence. 


262  OF    IMPRISONMENTS    ON    JUDGMENT. 

§  10.  If  a  debtor  who  has  not  voluntarily  surrendered  his 
property  to  his  creditors  or  has  not  been  proceeded  against  for 
a  surrender  under  the  provisions  of  this  act  shall,  in  violation 
of  any  existing  law,  have  within  the  year,  given  an  unjust  ad- 
vantage or  preference  to  any  one  or  more  of  his  creditors,  by 
payment  or  otherwise,  or  shall  have  anticipated  the  payment, 
or  provided  for  the  payment  of  a  debt  not  due,  the  eifect 
whereof  shall  be  to  injure  the  complaining  creditor  ;  or  shaU 
purchase  property  for  cash,  the  delivery  whereof  shall  be  made 
to  liim,  and  then  shall  sell  or  dispose  of  the  same  without  pay- 
ing his  vendor,  or  shall  remove  the  same  beyond  the  reach  of 
such  vendor,  or  shall  conceal  or  cover  the  same  in  any  man- 
ner so  that  his  vendor  cannot  render  the  same  liable,  (or  shall 
fail  to  pay  over  money  received  or  collected  for,  or  deposited 
with  him  for  another,)  or  shall  have  made  a  conveyance,  or 
transfer,  or  mortgages,  or  pledge  of  his  property  to  the  preju- 
dice of  the  complaing  creditor  ;  any  of  such  facts  shall  be  held 
presumptive  evidence  of  fraud,  liable,  however,  hke  all  other 
presumptions,  to  be  disproved. 

§  11.  Any  creditor  who  imder  the  tenth  section  of  this  act 
may  justly  believe  that  he  has  good  cause  of  complaint,  may 
apply  to  a  competent  judge,  who  may  thereupon  order  the  ar- 
rest and  confinement  of  the  party  complained  of,  until  such 
party  shall  give  bond  in  a  sum  to  be  fixed  by  the  judge,  with 
one  or  more  solvent  sureties  residing  in  the  State,  conditioned 
for  such  party's  appearance  to  answer  the  petition  and  abide 
the  final  order  of  the  court  thereon. 

§  12.  AU  cases  which  shall  originate  under  the  provisions 
of  this  act,  shall  be  tried  within  the  shortest  delay  and  in  pre- 
ference to  all  other  cases  on  the  docket ;  not,  however,  deny- 
ing to  either  party  sufficient  time  to  procure  witnesses  and 
evidence  upon  a  proper  showing  ;  and  either  party  may  require 
the  same  to  be  tried  by  jury. 

§  13.  When  the  causes  mentioned  in  the  tenth  or  eleventh 
sections  of  this  act  shall  be  tried,  if  the  jury  or  court,  as  the 
case  may  be,  shall  be  "satisfied  that  the  defendant  has  been 


OF    IMPRISONMENTS    ON   JUDGMENT.  2()3 

guilty  of  defrauding  the  complaining  creditor,  the  court  shall 
condemn  the  defendant  to  be  imprisoned  for  a  period  not  ex- 
ceeding three  years  ;  and  if  it  shall  appear  that  the  defendant 
has  only  been  guilty  of  conferring  an  unjust  preference  or  ad- 
vantage upon  another  bona  fide  creditor,  whose  demand  was 
actually  due,  sucli  defendant  may  be  relieved  from  the  im- 
prisonment by  paying  the  complaining  credited,  or  repairing 
the  injury  or  fraud  complained  of ;  and  in  case  the  jury-  or 
court,  as  the  case  may  be,  shall  find  the  charges  against  the 
debtor  unfounded,  and  that  the  creditor  has  proceeded  without 
reasonable  ground  of  suspicion,  they  may  impose  such  damages 
against  the  party  complaining  as  may  be  reasonable  and  just. 

§  14.  The  creditor  who  may  proceed  against  his  debtor 
under  the  provision  of  the  tenth  or  eleventh  sections  of  this 
act  may  in  the  same  action  proceed  against  the  party  in  favor 
of  whom  the  defendant  may  have  made  the  sale,  conveyance, 
mortgage,  transfer,  pledge,  assignment  or  payment  complained 
of  and  the  court  may  render  judgment  against  such  third 
party  in  pursuance  of  the  existing  laws. 

§  15.  The  debtors  complained  of,  shall  not  by  the  provisions 
of  this  act,  be  denied  or  deprived  of  the  benefit  of  the  writ  of 
habeas  corpus. 

Stat.  lOfh  February,  1841,  p.  17.— §  14.  Whenever  a  judg> 
ment  is  rendered  against  a  sheriff  or  other  public  officer,  for 
money  by  him  or  them  received,  in  his  or  their  offiaial  capacity,  \ 
and  converted  to  his  or  then-  own  use,  or  not  accounted  for, 
and  the  writ  of  fieri  facias  is  returned  "  uo  property  found," 
a  capias  ad  satisfaciendum  may  be  taken  out  arid  executed 
against  such  defendant  or  defendants. 

Stat.  lOth  February,  1841,  p.  18.— §  19.  Nothing  contained 
in  the  act  entitled  "  an  act  to  aboUsh  imj)risonment  for  debt, 
approved  twenty-eighth  IMarch,  eighteen  hundred  and  forty," 
shall  be  construed  in  any  manner  to  impair  the  remedy  of 
creditors  on  bail  bonds,  executed  prior  to  the  passage  of  said 
act ;  and  that  for  the  purpose  of  fixing  the  security  on  said 
bonds,  the  writ  of  capias  ad  satisfaciendmn  shall  remain  m 


264  OF    EXECUTORY    PROCESS. 

force  ;  proAaded,  that  a  debtor  arrested  under  such  writ,  shall 
be  entitled  to  be  discharged  on  complying  with  the  provisions 
of  said  act. 

Art.  730. — Tliis  order  shall  be  directed  to  the  sheriff  of 
the  parish  in  which  the  debtor  resides,  who  shall  execute  it, 
by  confining  the  body  of  the  debtor,  unless  he  pays  the  amount 
of  the  judgmant,  with  interest  and  costs,  unless  he  takes  the 
prison  limits. 

Art.  731 . — If  a  debtor  against  whom  a  warrant  of  impris- 
onment has  been  rendered,  shall  fly  into  another  parish,  to 
avoid  being  imprisoned,  he  may  be  arrested  by  the  sheriff  or 
any  constable  bearing  the  order,  in  the  jiarish  where  he  shall 
be  found,  provided  that  the  officer  shall  cause  to  be  indorsed 
on  the  warrant,  an  authoiization  to  that  effect,  by  the  judge 
or  any  justice  of  the  peace  of  the  parish  or  district  in  which  it 
is  to  be  executed. 


CHAPTER  VII. 
Of  Executory  Process. 

Art.  732. — Executory  process  can  only  be  resorted  to  in 
the  following  cases  : 

1.  When  the  creditor's  right  arises  from  an  act  importing 
a  confession  of  judgment,  and  which  contains  a  privilege  or 
mortgage  in  his  favor  ; 

2.  When  the  creditor  demands  the  execution  of  a  judg- 
ment which  has  been  rendered  by  a  tribunal  different  from  that 
witliin  whose  jurisdiction  the  execution  is  sought. 

The  proceeding  by  provisional  seizure,  (attachment,)  or  in 
rem,  resembles  in  some  sort  the  executory  process,  but  should 
not  be  confounded  with  it,  as  they  are  subject  to  different 
rules. 

4N.  S*.  197;  2  L.  547;  3  L.  112;  4  L.  322;  11  L.  163;  12L.  45;  4R.  490; 
6  R.  27  ;  10  R.  180. 


OF    EXECUTORY    PROCESS.  265 

Art.  733. — An  act  is  said  to  import  a  confession  of  judg- 
ment, in  matters  of  pri^dlcge  and  mortgage,  when  it  is  passed 
before  a  notary  public,  or  other  officer  fulfiUing  the  same  func- 
tions, in  the  presence  of  two  witnesses,  and  the  debtor  has  de- 
clared or  acknowledged  the  debt  for  which  he  gives  the  privi- 
lege or  mortgage. 

12  L.  476;  4  11.  328;  5  R.  21 ;  6  R.  20;   10  R.  180;  3  A.  150;  sec  7  M.  239. 

Art.  734. — When  the  creditor  is  in  possession  of  such  an 
act,  he  may  proceed  against  the  debtor  or  his  heirs,  by  caus- 
ing the  property  subject  to  the  privilege  or  mortgage  to  be 
seized  and  sold,  on  a  simple  petition,  and  without  a  previous 
citation  of  the  debtor,  in  the  manner  laid  down  in  the  tliird 
paragraph,  second  section,  third  chapter  of  the  first  part  of 
this  code. 

6  N.  S.  466 ;  7  N.  S.  646 ;  4  L.  88 ;  15  L.  431 ;  9  R.  8,  267 ;  1  A.  204 ;  2  A. 
145;  3  A.  268;  see  2  A.  613;  C.  C.  1370,  1382,  1387,  1395,  1390,  3361;  see  61 
to  67,  744. 

Art.  735. — In  obtaining  this  order  of  seizure,  it  shall  suf- 
fice to  give  three  days'  notice  to  the  debtor,  counting  from  that 
on  which  the  notice  is  given,  if  he  resides  on  the  spot,  adding 
a  day  for  every  twenty  miles  between  the  place  of  his  residence, 
and  the  residence  of  thel^udge  to  whom  the  petition  has  been 
presented. 

7  N.  S.  510;  4L.  308;  6  R.  192,  463;  9  R.  8  ;  2  A.  145;  3  A.  268;  see  163. 

Art.  736. — The  judge  within  whose  jurisdiction  is  situated 
the  property  subjected  to  the  privilege  or  mortgage,  has  the 
power  to  issue  this  order  of  seizure  and  sale,  although  the 
debtor  resides  out  of  his  jurisdiction  ;  and  in  this  case,  the 
clerk  of  the  court  issuing  the  order  shall  direct  to  the  sheriff 
of  the  parish  where  the  debtor  resides,  a  written  notice  to  be 
given  to  liim,  and  it  shall  be  the  duty  of  the  said  sherifi"  to 
serve  the  notice,  and  return  the  original  with  liis  report  in  the 
same  manner  as  in  ordinary  citations. 

2  A.  145. 

Art.  737. — If  the  debtor  who  has  granted  the  privilege  or 
mortgage  is  absent,  and  not  represented  in  the  State,  the  judge. 


266  OF    EXECUTORY    PROCESS. 

at  the  request  of  the  plainiiff,  shall  appoint  him  an  attorney, 
to  whom  notice  of  the  demand  shall  be  given,  in  the  manner 
above  directed,  and  contrarily  with  whom  the  seizure  and  sale 
shaU  be  prosecuted. 

8  N.  S.  584 ;  3  L.  444 ;  7  L.  C6  ;  see  748,  749. 

Art.  738. — The  debtor,  against  whom  this  order  of  seizure 
shaU  have  been  rendered,  may  obtain  an  injunction  to  suspend 
the  sale,  if  before  the  time  of  sale,  he  files  in  the  court  issuing 
the  order,  his  opposition  in  WTiting,  alleging  some  of  the  rea- 
sons contained  in  the  following  article,  and  of  which  he  shall 
swear  to  the  truth. 

2  R.  90  ;  4  R.  490. 

Art.  739. — The  debtor  can  only  arrest  the  sale  of  the 
thing  thus  seized,  by  alleging  some  of  the  follomng  reasons  to 
wit : 

1.  That  he  has  paid  the  debt  for  wliich  he  is  sued  ; 

2.  That  it  has  been  remitted  by  the  creditor  ; 

3.  That  it  has  been  extinguished  by  transaction,  novation, 
or  in  some  other  legal  manner  ; 

4.  That  time  has  been  granted  to  him  for  paying  the  debt, 
although  this  circumstance  be  not  mentioned  in  the  contract ; 

5.  That  the  act  containing  the  privilege  or  mortgage,  is 
forged  ; 

6.  That  it  was  obtained  by  fraud,  violence,  fear,  or  some 
other  unla\vful  means  ; 

7.  That  he  has  a  liquidated  account  to  plead  in  compensa- 
tion of  the  debt  claimed  ; 

8.  And  finally,  that  the  action  for  the  recovery  of  the  debt 
is  barred  by  prescription. 

15  L.  431 ;  3  R.  345 ;  4  R.  27,  95,  490  ;  10  R.  68  ;  5  A.  634. 

Art.  740. — When  the  judge  grants  an  injunction,  on  the 
allegation  under  oath,  of  any  of  the  reasons  mentioned  in  the 
preceding  article,  he  shall  require  no  surety  fi-om  the  defendant, 
but  he  shall  pronounce  summarily  on  the  merits  of  his  opposi- 
tion, if  the  plaintiff  requires  it,  as  is  explained  below.  ^ 

5  N.  S.  642;  8  N.  S.  370 ;  4  R.  59 ;  10  R.  68  ;  6  A.  634;  see  750. 


OF  EXECUTORY  PROCESS.  267 

Art.  741. — The  plaintiflf  against  whom  the  injunction  has 
been  obtained,  may  compel  the  defendant  to  prove,  in  a  sum- 
mary manner,  before  the  judge,  the  truth  of  the  facts  alleged 
in  his  opposition. 

2  L.  321,  482  ;  4  L.  90  ;  4  R.  59  ;  5  A.  634  ;  see  756. 

Art.  742. — If,  on  being  thus  required,  the  defendant  proves 
that  the  action  on  Avhich  the  seizure  has  been  obtained  is 'ex- 
tinct or  prescribed,  or  that  the  cause  of  it  is  void,  or  that  the 
debt  on  which  it  is  founded  is  paid,  remitted,  or  compensated, 
the  judge  shall  revoke  the  order  of  seizure,  and  condemn  the 
plaintiff  to  pay  costs. 

Art.  743. — But  if  the  defendant  does  not  prove  the  truth 
of  the  facts  alleged  in  his  opposition,  or  if  it  appears  that  he 
has  paid  or  can  plead  in  compensation,  for  only  a  part  of  the 
debt,  the  judge  shall  dissolve  the  injunction  he  had  granted, 
and  the  sale  of  the  property  shall  proceed,  either  for  the  whole 
debt  or  for  a  part,  as  the  case  may  be. 

2  A.  763. 

Art.  744. — The  executory  process  in  matters  of  privilege 
and  mortgage,  may  be  pursued,  not  only  against  the  debtor, 
or  his  heirs,  but  also  against  the  third  possessors  of  the  things 
subjected  to  it,  according  to  the  forms  prescribed  in  the  3d 
paragraph,  2d  section,  3d  chapter  of  the  1st  part  of  this  code. 

SL.  319;   1  A.  204;   sec  61,68. 

Art.  745. — When  the  sheriff  sells  property  which  he  has 
seized  conformably  to  the  provisiofls  contained  in  this  chapter, 
he  must  cause  the  same  appraisements  to  be  made,  and  ob- 
serve the  same  delays  and  formalities  as  are  prescribed  for  the 
sale  of  property  seized  in  execution. 

8  L.  581 ;  9  R.  8 ;  5  A.  737  ;  see  654,  664. 

Art.  746. — When  a  creditor  has  obtained  against  his  debt- 
or a  judgment  having  the  force  of  res  judicata,  in  a  tribunal 
different  from  that  in  which  he  seeks  the  execution,  whether 
the  judgment  was  rendered  in  tliis  State  or  another  State  of  the 
Union,  or  in  a  foreign  country,  he  may,  on  this  ground,  pro- 


268  OF    EXECUTORY    PROCESS. 


• 


ceed  by  cxecutoiy  process,  and  cause  to  be  seized  and  sold  the 
proport}'^  of  his  debtor,  without  previous  citation,  in  the  same 
manner  as  on  privileged  or  mortgaged  debts,  contained  in  acts 
imjiorting  confession  of  judgment,  except  in  the  case  mention- 
ed in  the  following  article. 

8  L.  475 ;  8  L.  581  ;  10  L.  222,  381  ;  12  L.  44,  46 ;  3  R.  94  ;  4  R.  274 ;  9  R 
267  ;  2  A  212  ;  3  A.  253,  693,  698 ;  see  747. 

Art.  747. — If  the  judgment  of  which  the  creditor  is  in  pos- 
session, shall  appear  to  have  been  rendered  by  default,  or  on 
attachment,  in  other  tribunals  than  those  of  this  State,  he 
cannot  proceed  by  the  executory  process  under  the  pretext 
that  the  judgment  has  acquired  the  force  of  res  judicata,  but 
must  adopt  the  ordinary  moda 

Stat.  1st  June,  1846,  p.  166. — So  much  of  articles  seven 
hundred  and  forty-six  and  seven  hundred  and  forty-seven  of 
the  Code  of  Practice  as  authorizes  a  creditor  having  obtained 
a  judgment  in  another  State  of  the  Union,  or  in  a  foreign 
country,  to  proceed  by  executory  process  on  said  judgment  be, 
and  the  same  is  hereby  repealed. 

1  L.  207 ;  8  L.  294 ;  6  R.  29 ;  9  R.  267  ;  2  A.  212 ;  3  A.  693,  698. 

Art.  748. — The  defendant,  against  whom  an  order  ot 
seizure  has  been  obtained,  by  virtue  of  a  judgment,  as  stated 
above,  may  obtain  an  injunction  to  stop  the  sale  of  the  proper- 
ty seized,  if  he  alleges  under  oath,  in  his  opposition,  that  the 
judgment  has  not  acquired  the  force  of  res  judicata,  because 
he  has  appealed  from  it,  or  because  it  is  void  by  the  law  of  the 
place  where  it  was  rendered. 

4  R.  274;  2  A.  212  ;  see  304. 

Art.  749. — The  defendant  may  also  obtain  an  injunction, 
on  alleging,  under  oath,  any  of  the  causes  which  prevent  the 
sale  of  property  mortgaged  or  otherwise  bound,  by  virtue  of 
an,  act  importing  a  confession  of  judgment. 

2  A.  212;  see  739. 

Art.  750. — But  in  the  cases  mentioned  in  the  two  pre- 
ceding articles,  the  judge  shall  not  grant  an  injunction  without 


OF    SUMMARY   PROCESS.  269 

requiring  that  the  defendant  shall  give  bond  to  the  plaintiff, 
with  good  security,  to  the  amount  of  one-half  more  than  the 
api^raised  value  of  the  property  seized,  if  it  consist  of  slaves 
or  movables,  or  in  such  sum  as  the  judge  shall  fix,  if  the  pro- 
perty be  immovable,  conditioned  to  pay  such  damages  as  the 
plaintiff  may  suffer,  should  the  injunction  be  dissolved. 

2  A.  212;  see  740. 

Art.  751. — The  opposition  on  which  the  injunction  was 
granted,  shall  be  pronounced  on  summarily,  as  in  the  case  of 
a  public  act  bearing  a  privilege  or  mortgage. 

'  4  R.  59  ;  2  A.  212. 

Art.  752. — Judgments  rendered  in  the  different  courts  of 
the  United  States,  shall  import  full  proof  in  the  courts  of  this 
State,  if  the  copy  of  them  which  is  offered,  be  certified  by  the 
clerk  of  the  court  in  Avhich  they  are  rendered,  be  sealed  with 
its  seal,  if  there  be  one,  and  clothed  vdih  the  certificate  of  the 
judge,  chief  justice  or  magistrate  who  presides  in  the  court, 
as  the  case  may  be,  declaring  that  the  attestation  is  made  in 
due  form. 

5  N.  S.  129 ;  8  K  S.  306,  705  ;  9  L.  530  ;  9  R.  267  ;  2  A.  212. 

Art.  753. — When  the  judgments  have  been  rendered  in 
foreign  countries,  the  copies  presented  shall  be  considered  au- 
thentic, and  admitted  in  evidence  in  the  tribunals  of  this 
State,  if  they  are  clothed  with  all  the  forms  required  to  prove 
their  authenticity,  in  the  countries  where  they  are  pronounced. 

2  A.  212. 


CHAPTER   VIII. 

0/  Summary  Process. 

Art.  754. — The  summary  process  is  to  be  used  in  every 
case  where  it  is  expressly  prescribed  by  law. 

8  L.  254 ;  3  A.  434. 


« 


270  OF    SUMMARY    PROCESS. 

Art.  755. — Besides  the  cases  specially  directed  by  law^ 
judgment  shall  be  pronounced  summarily  : 

1.  On  all  incidental  questions  arising  in  the  course  of  a 
civil  trial. 

2.  On  all  motions  for  new  trial,  and  on  declinatory  excep- 
tions ;  (pleas  to  the  jurisdiction.) 

3.  On  motions  to  homologate.thc  reports  of  experts,  accounts 
of  auditors,  awards  of  arbitrators,  nominations  of  syndics  by 
creditors,  and  tableaux  of  distribution,  as  well  as  on  the  oppo- 
sitions made  to  them  ; 

4.  On  disputes  relative  to  the  privileges  of  the  creditors  of  a 
bankrupt,  and  the  order  in  which  they  are  to  be  paid. 

No.  117.  Stat.  12th  April,  1853.— §  1.  In  all  cases  in  which 
the  right  to  office  is  involved,  it  shall  be  the  duty  of  the  dis- 
trict court  before  which  said  case  is  to  be  tried,  to  give  said 
case  precedence  over  all  others,  except  criminal  cases,  and  to 
take  up,  try  and  dispose  of  such  case,  whenever  the  same  may 
be  ready  for  trial ;  or  if  said  case  be  an  appeal  before  the  supreme 
court,  it  shall  be  the  duty  of  said  supreme  court  to  give  said 
case  like  precedence  over  all  others,  except  appeals  in  criminal 
cases,  and  to  take  up,  hear  and  dispose  of  such  cases,  whenever 
the  same  may  be  ready  for  argument,  and  without  regard  to  the 
term  of  the  supreme  court  then  being  held. 

§  2.  This  act  shall  take  effect  from  and  after  its  passage. 

2  L.  349;  3  A.  272. 

Art.  756. — The  cases,  which  are  to  be  decided  in  a  sum- 
mary manner,  shall  not  be  set  down  on  the  ordinary  docket  of 
suits,  but  are  decided  on  days  fixed  for  the  purpose,  and  in  a 
speedy  manner,  conformably  to  such  special  rules  as  each  court 
may  establish  on  this  subject. 

3  L.  482 ;  4  R.  59  ;  3  A.  434. 

Art.  757. — These  cases  are  decided  without  the  interven- 
tion of  a  jury. 


OF   THE   DUTIES    AND    POWERS   OF   SHERIFFS.  271 

CHAPTER  IX. 

OF  THE  VARIOUS  OFFICERS  OF  COURTS  OF  ORIGINAL  JURISDICTION. 

Art,  758. — The  officers  of  courts  of  original  jurisdiction  are 
sheriffs,  clerks,  translators,  criers  and  constables. 

Art.  759. — The  rules  concerning  the  appointment  of  these 
officers,  the  duration  of  their  terms  of  service,  and  their  emolu- 
ments, are  determined  by  special  laws. 

In  this  section  vre  shall  treat  only  of  their  duties  in  relation 
to  civil  suits  prosecuted  before  tribunals. 

Sec.  I. — Of  the  duties  and  powers  of  sheriffs,  in  civil  matters. 

Art.  760. — It  is  the  duty  of  the  sheriff  of  each  parish  to 
execute  the  judgments  and  orders  of  the  supreme,  district, 
parish  and  probate  courts,  directed  to  him  agreeably  to  law, 

5  K  S.  125;  3  L,  312;  see  1047. 

Art,  761. — Eegularly,  sheriffs  can  only  exercise  their  duties 
in  the  parish  for  wliich  they  arc  appointed  ;  but  they  may  arrest 
a  debtor  taking  refuge  in  another  parish,  by  obtaining  an  au- 
thorization to  that  effect,  on  the  back  of  the  order  of  arrest, 
from  any  judge  or  justice  of  the  peace  of  the  parish  to  which 
he  may  have  fled. 

See  731. 

Art.  762. — In  executing  the  orders  and  judgments  with 
which  they  are  charged,  sheriffs  may  enter  on  the  lands  and  into 
the  house  of  a  debtor,  break  the  doors,  remove  the  furniture  if 
the  execution  cannot  be  effected  by  other  means,  may  remove 
obstructions  which  any  person  may  have  placed  in  the  high  road  ; 
in  short,  they  may  do  all  such  acts  as  are  necessary  in  the  exe- ' 
cution  of  the  orders  or  judgments  with  wliich  they  are  charged  ; 
and  if  resistance  be  offered,  they  may  require  assistance  from 
the  neighbors  or  persons  passing  by. 

6  R.  100 ;  see  632. 


272  OF    THE    DUTIES   AND   POWERS    OF    SHERIFFS. 

Art.  763. — But  the  sheriff  cannot  execute  the  orders  oi 
judgments  with  which  he  may  be  charged,  in  civil  matters,  on 
the  days  and  hours  excepted  by  the  preceding  provisions  of 
this  code,  nor  arrest  a  debtor  going  to  or  returning  from.a  mus- 
ter of  the  miUtia. 

Art.  7G4. — Every  sherifif  may,  with  the  approbation  of  the 
parish  court  in  which  he  exercises  his  duties,  name  as  many 
deputies  as  he  thinks  fit,  but  he  remains  responsible  for  them, 
and  they  must,  before  entering  on  their  duties,  take  an  oath 
before  the  parish  judge,  to  perform  faithfully  the  duties  re- 
quired by  law  from  the  sheriffs  by  whom  they  are  named. 

This  appointment  and  oath  shall  be  entered  on  the  records 
of  the  parish  court. 

Art.  765. — Sheiiffs  may  notify  and  execute,  by  means  of 
constables,  the  different  orders,  citations,  summonses  and  judg- 
ments which  they  are  directed  to  give  notice  of,  and  to  cany 
into  execution,  they  being  responsible  however,  for  the  manner 
in  which  the  constables  may  perform  this  duty. 

Art.  766. — It  is  the  duty  of  the  sheriff  to  pay  all  sums  of 
money  received  or  collected  by  him,  by  virtue  of  an  order  or 
judgment  of  a  court,  to  the  person  to  whom  they  belong,  ox 
to  his  general  or  special  attorney,  within  three  days  after  a  de- 
mand. 

6  R.  202 ;  1  A.  144. 

Art.  767. — If  the  sheriff  refuse  or  neglect  to  pay  the  money 
thus  demanded,  the  party  to  whom  it  is  due  may  move  the 
court  which  rendered  the  order  or  judgment,  which  motion 
shall  be  served  on  the  sheriff,  and  shall  be  answered  by  him 
within  ten  days,  and  if  the  court  find  that  the  sheriff  is  in  de- 
fault, it  shall  condemn  him  to  pay  to  the  claimant,  as  well  the 
Bum  due  as  twenty  per  cent,  damages  per  annum,  reckoning 
from  the  time  when  the  money  ought  to  have  been  paid. 

Stat.  10th  February,  1841,  p.  14.— §  6.  It  shall  be  the 
duty  of  said  sheriffs  to  pay  over  to  the  parties  entitled  to  the 
same  all  moneys,  bonds  or  obligations  wliich  they  hold  in  their 
official  capacity,  on  the  first  demand  made  for  that  purpose  by 


OF    THE    DUTIES    AND    POWERS    OF    SHERIFFS.  273 

said  parties,  their  attorneys,  or  agents  ;  and  in  case  any  one 
of  said  sheriffs  should  neglect  or  refuse  to  pay  over  the  funds 
in  their  hands  on  said  demand,  the  party  aggrieved  may  pro- 
ceed against  said  sheriff,  by  motion,  of  which  twenty-four  hours' 
notice  shall  he  given,  and  if  it  appear  to  the  satisfaction  of  the* 
court  that  the  sheriff  has  neglected  or  refused  to  pay  over  any 
funds,  or  deliver  any  bonds  or  obligations  in  his  possession  to 
the  party  entitled  to  the  same,  without  any  legal  cause  or  rea- 
sonable excuse,  the  judgment  of  the  court  on  said  case  shall  be 
certified  to  the  governor  of  the  State  of  Louisiana,  wdiose  duty 
it  shall  be  forthwith  to  remove  such  sheriff'  from  office,  and  to 
appoint  another  sheriff  in  his  place  :  and  if  said  appointment 
should  take  place  during  the  recess  of  the  legislature,  the  com- 
mission of  such  sheriff  shall  cxi)ire  in  the  same  manner  as  other 
appointments  by  the  governor  during  the  recess. 

Stat.  lOfh  Februarij,  1841,  p.  17.— §  14.  Whenever  a 
judgment  is  rendered  against  a  sheriff  or  other  public  officer, 
for  money  by  him  or  them  received,  in  his  or  their  official  ca- 
pacity, and  converted  to  his  or  their  own  use,  or  not  accounted 
for,  and  the  writ  oi Jieri  facias  is  returned  "no  jiroperty 
found,"  a  cajyias  ad  satisfaciendum  may  be  taken  out  and  ex- 
ecuted against  such  defendant  or  defendants. 

11  L.  4G3;  5R.  202. 

Art,  768. — The  sheriff  is  bound  to  recover  and  account 
for  all  fines  which  are  imposed  by  the  different  courts  of  his 
parish,  and  shall  pay  the  amount  every  six  months  ;  those 
which  are  for  the  benefit  of  the  State,  into  the  hands  of  the 
State  treasurer,  and  those  which  accrue  to  the  parish,  into  the 
hands  of  the  treasurer  of  such  parish. 

Art.  769. — The  sheriff  who  shall  neglect  to  make  pay- 
ment of  the  fines  recovered  by  him,  at  the  times  fixed  by  the 
preceding  article,  shaU  be  condemned  to  pay  the  amount,  on 
motion  in  the  name  of  the  State  by  the  treasurer  into  whose 
hands  the  payment  should  have  been  made,  before  the  court 
of  the  district  or  parish  where  the  sheriff*  resides. 

Art.  770. — When  the  sheriff  causes  property  to  be  ap- 
18 


274  OF    THE    DUTIES    AND    POWERo   OF    CLERKS. 

praised  which  has  been  seized  or  distrained  by  him,  if  there  be 
no  jndge  or  justice  of  the  peace  on  the  sj)ot  to  administer  the 
oatli  to  the  appraisers,  he  may  administer  it  liimsclf,  hut  he 
shall  receive  no  reward  on  tliis  account,  nor  shall  he  adminis- 
ter an  oath  in  any  other  case  than  the  one  now  mentioned,  or 
in  such  others  as  the  law  shall  make  such  provision  for. 

Stat.  5th  3Iarch,  1847,  p.  55. — §  3.  Article  seven  Imndred 
and  seventy  of  the  Code  of  Practice  shall  read  as  follows  : 

''  When  the  sheriff  causes  proi^erty  to  be  appraised,  which 
has  been  seized  or  distrained  by  him,  said  sheriff,  or  any  judge 
or  justice  of  the  peace,  may  administer  the  oath  to  the  ap- 
praisers :  but  the  said  sheriff'  shall  receive  no  fee  or  compensa- 
tion for  the  administration  of  said  oath  ;  nor  shall  he  administer 
an  oath  in  any  other  case  than  the  one  now  mentioned,  or  in 
Buch  others  as  the  law  shall  make  provision  for." 

Art.  771. — The  deputy  sheriff*  may  rej)resent  the  sheriff" 
in  all  the  duties  confided  by  law  to  the  latter  ;  but  this 
power  ceases  in  all  cases  where  the  duties  of  the  sheriff  are 
fulfilled  by  the  coroner,  as  directed  in  the  next  article. 

Art.  772. — The  coroner  is  appointed  to  peifonn  the  du- 
ties of  the  sheriff,  where  that  office  is  vacant,  either  by  the 
death,  resignation,  or  removal  of  the  incumbent,  until  a  suc- 
cessor has  been  appointed. 

The  coroner  also  discharges  the  duties  of  the  sheriff, 
whenever  the  latter  is  interestedjin  a  cause. 

15  L.  289;  1  A,  317. 

Art.  773. — The  provisions  relative  to  the  appointment  of 
coroners  and  the  duties  exclusively  confided  to  them,  are  pre- 
scribed by  special  laws. 

Sec.  II. — Of  the  duties  and  looioers  of  clerks. 

Stat.  29th  May,  1846,  p.  QQ.—%  1.  The  clerks  of  the  several 
district  courts  shall  have  power  to  issue  writs  of  aiTcst,  attach- 
ment, sequestration,  and  provisional  seizure  ;  to  issue  com- 
missions to  take  testimony  in  and  out  of  the  State,  to  fix  tho 


OF    THE    DUTIES   AND    POWERS    OF    CLERKS.  275 

return  day  thereof,  and  to  appoint  commissioncFs  to  execute 
the  same  ;  to  grant  orders  for  affixing  seals  and  taking  inven- 
tories, anfl  to  order  the  probate  and  execution  of  wills  ;  to 
confirm  testamentary  executors,  to  appoint  and  confirm  tutors 
and  under  tutors,  to  appoint  dative  testamentary  executors, 
administrators,  curatoi's  of  vacant  successions,  and  absent  heirs 
and  attorney  of  absent  heirs,  after  giving  notice  in  the  cases 
and  manner  required  by  law  ;  to  grant  marriage  licenses,  to 
call  family  meetings  and  homologate  the  proceedings  of  the 
same,  provided  that,  if  opposition  be  made  to  such  homologa- 
tion, the  contestation  on  the  same  shall  be  determined  by  the 
district  court ;  to  grant  orders  for  the  sale  of  property  of  suc- 
cessions ;  to  issue  citations  to  warrantors,  provided  that  the 
judge  may  disregard  the  same  should  said  judge  be  of  opinion 
that  said  citation  ought  not  to  have  been  allowed. 

§  2.  Whenever  it  shall  be  found  by  the  clerk  that  a  suc- 
cession is  so  small,  or  is  so  much  in  debt  that  no  person  will 
apply  for,  or  will  be  willing  to  accept  the  curatorship,  or  when 
a  vacancy  exists  in  such  appointment  which  no  one  demands 
the  nomination  to,  the  said  clerk  shall  assume  the  administra- 
tion of  such  succession.  He  shall  cause  the  efiects  of  said 
succession  to  be  sold,  and  the  proceeds  to  be  applied  to  the 
payment  of  its  debts  ;  the  whole  to  be  done  in  as  summaiy  a 
manner  as  possible,  to  diminish  costs,  provided  this  section  is 
not  to  apply  to  successions  amounting  to  more  than  five  hun- 
dred dollars. 

§  3.  It  shall  be  the  duty  of  the  several  clerks  to  send,  at 
the  end  of  every  year,  a  list  certified  under  their  hands  and 
seals,  of  all  the  vacant  estates  or  those  belonging  to  absent 
heirs  wliich  were  opened  in  their  respective  parishes  during  the 
course  of  said  year,  with  mention  of  the  name  and  surname  of 
the  deceased,  the  time  of  his  or  her  death,  the  name  and  sur- 
name of  the  curators  or  executors  of  said  estate,  to  the  treasurer 
of  the  State. 

§  4.  Whenever  it  shall  occur  that  no  one  will  take  upon 
himself  the  tutorship  of  a  minor,  and  comply  with  existing  laws 


276  OF    THE    DUTIES    AND    POWERS    OF    CLERKS.    ' 

by  giviug  the.  required  security  for  the  tutorship  of  minors,  it 
shall  be  the  duty  of  the  clerk  to  summon  a  family  meeting, 
and  with  its  advice  to  nominate  one  discreet  and  responsible 
person  in  that  parish  to  be  tutor,  and  another  to  be  under 
tutor,  who  shall  in  all  respects  comj)ly  with  existing  laws  in 
relation  to  tutors,  except  that  of  giving  security  for  liis  admin- 
istration. 

§  5.  All  orders  which,  by  the  provisions  of  this  act,  the 
several  clerks  are  empowered  to  grant  may  be  opposed  by  any 
person  in  interest,  to  the  same  extent  as  such  orders  arc  now 
subject  to  opposition,  and  in  case  of  such  opposition  said  orders 
shall  not  be  executed  unless  the  district  court  shall  sustain  the 
same. 

§  6.  All  appointments  which,  by  the  provisions  of  this  act, 
the  several  clerks  are  empowered  to  make,  may  be  opposed  by 
any  person  in  interest  to  the  same  extent  as  such  apjiointments 
are  now  subject  to  opposition,  and,  in  case  of  such  opposition, 
the  district  court  shall  determine  on  the  same,  and  if  any  such 
opposition  be  made,  said  appointment  shall  be  provisional, 
and  the  person  so  provisionally  ajipointed  shall  have  no  power, 
except  to  collect  and  preserve  the  accounts  and  property  of 
the  estate,  with  which  by  such  appointment  said  person  may 
be  intrusted,  provided,  that  all  persons  so  provisionally  ap- 
pointed shall  qualify  in  manner  and  form  as  requu-ed  by  law. 

§  7.  In  all  cases  of  opposition  to  any  order  granted,  ap- 
pointments made,  or  homologation  decreed,  or  motion  tiled  in 
the  clerk's  ofiice,  it  shall  be  the  duty  of  the  clerk  to  place  said 
opposition  on  the  docket  of  the  district  court,  and  to  issue  a 
copy  of  said  motion  to  be  served  on  the  opposite  party. 

§  8.  The  clerks  of  said  courts  shall  have  power  to  grant 
orders  of  injunction  during  the  absence  of  the  judge  of  the 
district  from  the  parish  ;  Provided,  that  whenever  such  order 
is  granted  by  a  clerk  enjoining  the  execution  of  any  judgment 
of  a  court  of  tliis  State  for  a  specific  sum  of  money,  the  party 
obtaining  the  same,  shall  be  required  to  give  bond  conditioned 
as  the  law  directs,  in  a  sum  of  one-half  over  the  amount  en- 
joined. 


OF    THE    DUTIES    AND    POWERS    OF    CLERKS.  277 

§  9.  The  said  clerks  shall  have  power  to  order  all  executors, 
tutors,  curators,  administrators,  and  syndics  to  file  accounts, 
within  ten  days  after  such  order  may  have  been  made,  allowing 
one  day  for  every  ten  miles  between  the  residence  of  the  party 
80  ordered  and  the  court-house. 

§  10.  It  shall  be  the  duty  of  the  said  clerks  to  make,  and 
place  on  the  docket  of  the  district  court,  at  each  term  thereof, 
a  list  of  all  such  executors,  administrators,  tutors,  curators, 
and  syndics  as  shall  have  failed  to  file  accounts  within  the 
twelve  months  next  preceding. 

§  11.  In  every  year,  each  of  the  sheriffs  of  this  State,  ex- 
cept those  within  the  first  judicial  district,  jointly,  witll  not 
less  than  two  freeholders  of  his  parish,  shall  fonn,  agreeably  to 
their  particular  knowledge,  a  list  of  the  inhabitants  of  their 
respective  parishes,  that  in  their  judgments  they  may  consider 
capable  of  fulfilling  the  duties  of  jurors  in  the  district  courts  : 
Provided,  that  the  number  of  inhabitants  inscribed  on  said  list 
shall  not  exceed  two  hundred,  and  consists  of  at  least  one  hun- 
dred, if  so  many  competent  jurors  are  found  in  said  parish  ; 
which  list,  duly  signed  and  certified  by  said  sherift"  and  free- 
holders, shall,  by  the  sheritf,  be  transmitted  to  the  clerks  of  the 
district  courts  of  their  respective  parishes  :  And  provided  also, 
that  the  sheriif  and  freeholders  shall,  as  far  as  possible,  avoid 
placing  on  the  list  the  names  of  those  individuals  wlio  have 
ser^'cd  as  jurors  according  to  the  previous  jury  list. 

It  shall  be  the  duty  of  the  clerks  of  the  said  district  courts, 
to  write  on  the  ballots  the  names  of  the  persons  composing  said 
list,  and  put  the  said  ballots  in  a  box  shut  with  two  locks,  one 
of  the  keys  of  which  shall  be  kept  by  the  clerks  of  the  district 
court,  and  the  other  by,  the  sheriff. 

At  least  twenty  days  before  each  jury  session  of  the  district 
,  court,  tlie  clerk  of  the  said  court,  in  tlie  presence  of  the  slieriiF 
and  two  freeholders  of  the  parish,  shall  draw  from  said  box  not 
less  than  forty-eight  ballots,  and  the  same  clerk  shall  deliver  to 
the  shcrifl*  of  the  parish  a  certified  list  of  the  names  of  the 
persons  so  drawn,  and  it  shall  be  the  duty  of  said  sherifi"  to 


278      OF  THE  DUTIES  AND  POWERS  OF  CLERKS. 

summon  said  persons  to  serve  as  grand  and  petit  jurors  at  the 
ensuing  terra  of  said  district  court :  Pro^'ided,  that  in  case  of 
absence,  death,  or  sickness  of  tlic  sheriff,  the  duties  required 
of  liim  by  this  act  may  be  performed  by  any  duly  commissioaed 
justice  of  the  peace  of  the  parish. 

In  any  case  when  a  jury/ selected  imder  the  pro\asions  of 
this  act,  shall  be  set  aside  by  the  court  on  account  of  any  de- 
fect or  informality  whatsoever,  it  shall  be  the  duty  of  the  clerk 
of  the  district  court  to  give  immediate  notice  thereof  to  the 
sheriff,  or  in  case  of  his  death,  sickness,  or  absence,  to  some 
justice  of  the  peace,  whose  duty  it  shall  be  to  draw  a  new  set 
of  juj-ors  instanter,  under  the  provisions  and  formalities  hereto- 
fore required,  which  said  jurors'  shall  be  summoned  to  appear 
instanter,  and  serve  as  jurors,  the  twenty  days  required  being 
in  such  case  waived,  and  the  said  court  shall  not  be  adjourned, 
except  from  day  to  day,  till  such  jury  can  be  convened  :  Pro- 
vided, that  such  session  be  not  continued  so  as  to  interfere  with 
any  regular  session  of  said  court  in  another  parish. 

All  or  any  objections  which  might  or  could  be  made,  on 
account  of  any  defect  or  informality  wliich  may  have  occurred, 
either  in  the  fc)rmation,  dra\ving,  or  summoning  of  said  juries 
under  the  provisions  of  this  act,  or  any  other  defect  whatso- 
ever, in  the  construction  of  said  juries,  shall  be  made  on  the 
first  day  of  the  terms  of  said  district  courts,  and  not  after- 
wards, 

§  12.  The  said  clerks  shall  issue  all  orders,  ^vrits,  and  pro- 
cesses of  every  kind  emanating  from  their  respective  courts, 
and  shall  have  authority  to  administer  oaths. 

§  13.  The  said  clerks  shall  receive  as  compensation  for  the 
orders  which,  by  tliis  act,  they  are  empowered  to  grant,  and 
for  all  writs,  notices,  or  processes  issued  on  said  orders,  they 
shall  receive  the  same  compensation  as  is  now  allowed  by  law 
to  the  clerks  of  probate  courts,  or  judges  thereof,  or  such  com- 
pensation as  may  hereafter  be  allowed  by  law. 

§  14.  The  clerk  shall  record  all  proceedings  in  successions 
in  the  same  manner  as  was  required  of  parish  judges,  and  he 


OF    THE    DUTIES    AND    POWERS    OF    CLERKS.  279 

shall  receive  therefor  such  fees  as  are  now  or  may  hereafter  be 
allowed  by  law. 

§  15.  The  several  clerks  of  the  district  courts  in  this  State, 
before  they  enter  upon  the  discharge  of  their  offices,  shall  give 
bond,  with  at  least  two  securities,  for  the  faithful  discharge  of 
their  official  duties.  Said  bond  shall  be  made  to  the  governor, 
and  may  be  sued  upon  by  any  party  injured  ;  the  bond  and 
securities  thereon  shall  be  approved  by  the  district  attorney  of 
the  judicial  district  in  which  said  bond  is  given  ;  and  it  shall 
be  deposited  in  the  office  of  the  sheriiF  of  the  parish,  who  shall 
transmit  a  certified  copy  of  the  same  to  the  State  treasurer ; 
and  a  copy  of  the  bond  so  transmitted,  duly  authenticated  by 
said  treasurer,  shall  be  admissible  as  evidence. 

§  16.  The  amount  of  the  bonds  of  the  several  clerks  shall 
be  determined  by  the  parochial  authorities  of  the  parishes  re- 
spectively ;  and  said  bond  shall  be  renewed  every  two  years, 
and  in  case  of  failure  of  the  clerk  so  to  renew  liis  bond,  he 
shall  be  removed  from  office  by  the  district  judge  on  due  proof 
of  the  fiict  being  made  by  the  district  attorney,  whose  duty  it 
shall  be  to  prosecute  in  sucli  cases. 

§  17.  Whenever  any  clerk  of  any  district  court  now  exist- 
ing, or  hereafter  to  be  organized  within  this  State,  shall  be 
guilty  of  any  malfeasance  in  the  discharge  of  the  duties  of  liis 
office,  or  of  any  breach  of  good  beha\dor,  it  shall  be  lawful  for 
the  person  or  persons  Aj'ho  shall  be  aggrieved  thereby,  or  any 
other  persons,  to  complain  to  the  judge  of  the  said  court,  by 
petition,  setting  forth  the  nature  of  the  charge  against  the  said 
clerk,  and  the  facts  ujion  which  the  same  is  founded.  It  shall 
be  the  duty  of  the  district  attorney  of  said  district  court,  upon 
the  presentation  of  any  such  petition,  to  cite  said  clerk  to  ap- 
pear and  answer  to  the  same,  on  a  day  to  be  by  the  said  court 
assigned,  and  named  in  the  citation,  and  upon  the  appearance 
of  such  clerk,  to  proceed  to  hear  and  determine  the  matters 
alleged  against  him  in  said  petition.  If  upon  hearing  all  tlio 
proofs  to  be  exhibited  by  the  parties,  the  said  judge  shall  be 
of  opinion  that  the  said  clerk  has  been  guilty  of  any  act  which, 


) 

280  OF    THE    DUTIES    AND    POWERS    OF    CLERKS. 

in  the  opinion  of  said  court,  ought  to  disquahfy  him  from  hold- 
ing his  said  office  of  clerk,  that  then,  and  in  that  case,  tho 
court  shall  proceed  to  pronounce  judgment  to  that  effect,  and 
the  said  clerk  shall  be  accordingly  removed  from  office. 

In  such  proceedings,  it  shall  be  the  duty  of  a  person  select- 
ed by  the  sheriff  for  the  purpose,  to  write  down  all  the  testi- 
mony that  may  be  presented  by  the  parties,  in  order  that  a 
copy  thereof,  and  of  all  other  papers  connected  with  sueli  ac- 
tion, may  be  sent  to  the  sujireme  court,  in  case  an  appeal 
shall  be  obtained.  In  no  event  shall  the  clerk  be  suspended 
in  the  exercise  of  his  functions  except  in  proceedings  relative 
to  his  own  trial,  but  should  judgment  of  removal  be  pronounc- 
ed against  him,  and  he  should  fail  to  demand  an  appeal  in  ten 
days  from  the  date  such  judgment  was  rendered,  the  judge  shall 
declare  the  office  vacant  and  shall  fill  the  same  by  appoint- 
ment. If  any  clerk  as  aforesaid,  shall  fail  to  appear  and  answer 
to  any  citation  from  the  said  district  attorney,  as  aforesaid, 
and  proof  being  made  of  the  service  thereof,  or  shall  not  show 
cause  to  the  satisfaction  of  the  said  judge  why  he  does  not  ap- 
pear, that  it  shall  be  the  duty  of  the  said  judge  to  pass  judg- 
ment of  removal  from  office  against  the  said  clerk,  and  it  shall 
be  the  duty  of  the  judge  of  the  court  of  which  the  delinquent 
was  clerk  to  proceed  to  the  appointment  of  another  clerk  as 
aforesaid. 

§  18.  Each  of  said  clerks  shall  have  power  to  appoint  as 
many  deputies  as  he  may  judge  necessary,  to  be  approved  by 
the  district  judge,  and  sworn  in  by  him  in  open  court,  or  in 
chambers  :  that  the  clerk  shall  be  responsible  for  the  official 
conduct  of  said  deputies,  and  said  deputies  shall  have  all  the 
powers  now  vested  by  law  in  the  deputy  clerks. 

§  19.  The  foregoing  provisions  of  this  act  shall  not  apply 
to  the  clerks  of  the  district  court  in  and  for  the  parish  of  Jef- 
ferson, but  that  said  clerk  shall  exercise  the  same  powers  and 
perform  the  same  duties  as  are  required  by  law  from  the  clerka 
of  courts  in  the  parish  of  Orleans,  and  shall  furnish  the  sama 
security  and  receive  tlie  same  compensation  as  said  clerks,  pro- 


OF    THE    DUTIES    AND    TOWERS    OF    CLERKS.  281 

vicled  that  no  salary  shall  be  paid  him,  and  that  the  election 
for  said  clerk  shall  take  place  on  the  third  Monday  in  June  next. 

§  20.  The  said  clerks  shall  enter  into  tlicir  several  offices 
so  soon  as  they  shall  have  received  theu'  several  commissions 
from  the  governor,  given  bond  and  taken  the  oath  prescribed 
by  the  constitution. 

§  21.  This  act  shall  go  into  operation  on  the  third  Monday 
of  June  of  the  present  year. 

Stat.  I6th  March,  1848,  p.  107.— The  eighth  section  of 
the  act  to  provide  for  carrying  into  effect  the  judiciary  system, 
approved  the  twenty-ninth  of  May,  eighteen  Inmdred  and 
forty-six,  be  amended  so  that  the  same  shall  read  as  follows, 
to  wit : 

§  2.  The  clerks  of  said  courts  shall  have  power  to  grant 
orders  of  injunction  during  the  absence  of  the  judge  of  the 
district  from  the  parish  ;  Provided,  that  whenever  such  order  is 
granted  by  a  clerk  enjoining  the  execution  of  any  judgment 
of  a  court  of  this  State  for  a  specific  sum  of  money,  the  party 
obtaining  the  same  shall  be  required  to  give  bond,  conditioned 
as  the  law  directs,  in  a  sum  of  one-half  over  the  amoimt  en- 
joined ;  and  provided,  furtlier,  that  in  all  cases  in  which  the 
district  judge  is  interested,  though  present  in  the  parish  in 
which  the  injunction  is  sought  to  be  obtained,  the  clerk  shall 
have  power  to  issue  said  injunction,  and  it  shall  be  sufficient 
for  the  party  applying  for  the  injunction,  in  addition  to  the 
other  requisites  prescribed  by  law,  to  swear  that  he  verily  be- 
lieves that  the  district  judge  is  interested  in  the  cause  ;  but 
this  section  shall  not  apply  to  the  parish  of  Orleans  or  Jef- 
ferson. 

Stat.  16th  March,  1850,  p.  99.— §  1.  The  first  and 
eighth  sections  of  the  act,  entitled  "An  act  to  provide  for  car- 
rying into  effect  the  judiciary  system  of  this  State,"  approved 
May  twenty-ninth,  eighteen  hundred  and  forty-six,  and  the 
act  entitled  "  An  act  to  amend  an  act,  entitled  an  act  for  car- 
rjang  into  efiect  the  judiciary  system,  and  giving  clerks  the 
right  to  grant  injunctions  in  certain  cases,"  approved  March 


282  OF    THE    DUTIES   AND    POWERS   OF    CLERKS, 

sixteenth,  eighteen  hundred  and  forty-eight,  be  and  the  same 
are  hereby  rejiealed. 

§  2.  The  clerks  of  tlie  several  district  courts  shall  have  pow- 
er to  issue  writs  of  arrest,  attachments,  sequestrations  and  provi- 
sional seizure  ;  to  issue  commissions  to  take  testimony,  in  and 
out  of  the  State  ;  to  fix  the  return  day  thereof,  and  to  appoint 
commissionei-s  to  execute  the  same  ;  to  grant  orders  for  affix- 
ing seals  and  taking  inventories,  and  to  order  the  probate  and 
execution  of  wills ;  to  confirm  testamentary  executors ;  to 
appoint  and  confirm  tutors  and  under-tutors  ;  to  appoint  da- 
tive testamentary  executors,  administrators,  curators  of  vacant 
successions  and  absent  heirs,  and  attorney  of  absent  heirs,  af- 
ter giving  notice  in  the  cases  and  manner  required  by  law  ;  to 
grant  marriage  licenses  ;  to  call  family  meetings,  and  ho- 
mologate the  proceedings  of  the  same  :  Provided,  that,  if  op- 
position be  made  to  such  homologation  the  contestation  on 
the  same  shall  be  determined  by  the  district  court ;  to  grant 
orders  for  the  sale  of  the  property  of  successions  ;  to  issue  ci- 
tations to  warrantors  ;  provided  that  the  judge  may  disregard 
the  same,  should  said  judge  be  of  opinion  that  said  citation 
ought  not  to  have  been  allowed  ;  to  grant  orders  of  injunction 
during  the  absence  of  the  judge  of  the  district  from  the  par- 
ish ;  provided,  that,  whenever  such  order  is  granted  by  a  clerk, 
enjoining  the  execution  of  any  judgment  of  a  court  of  this 
State,  for  a  specific  sum  of  money,  the  party  obtaining  the 
same  shall  be  required  to  give  bond,  conditioned  as  the  law 
directs,  in  a  sum  of  one  half  over  the  amount  enjoined  ;  and 
provided  further,  that  in  all  cases  in  wliich  the  district  judge 
is  interested,  though  present  in  the  parish  in  which  the  in- 
junction is  sought  to  be  obtained,  the  clerk  shall  have  power 
to  issue  said  injunction ;  and  it  shall  be  sufficient  for  the 
party  applying  for  the  injunction,  in  addition  to  the  other  re- 
quisites prescribed  by  law,  to  swear  that  he  verily  believes  that 
the  district  judge  is  interested  in  the  cause  ;  but  this  section 
shall  not  apply  to  the  parishes  of  Orleans  or  Jefflu'son. 

§  3.  The  said  clerk,  shall  have  power  to  homologate  the 


OF    THE    DUTIES    AND    POWERS    OF    CLERKS.  '  283 

proceedings  of  meetings  of  the  creditors  of  insolvent  succes- 
sions ;  to  issue  orders  for  the  advertisement  of  the  fihng  of 
tablccaux  of  tutors,  executors,  administrators,  curators  of  va- 
cant estates  and  absent  heirs,  syndics  of  insolvent  successions, 
and  of  insolvent  debtors,  and  to  homologate  the  same  :  Pro- 
vided, that  if  there  be  opposition  made  to  such  homologation, 
the  contestation  on  the  same  shall  be  determined  by  the  judge 
of  the  district  court ;  provided,  also,  that  the  foregoing  pro-- 
visions  of  this  act  do  not  apply  to  the  clerks  of  the  courts  of 
the  parishes  of  Orleans  and  Jefferson. 

§  4.  In  all  cases  where  the  clerks  of  the  several  district 
courts  of  the  State,  (the  parishes  of  Orleans  and  Jefferson  ex- 
cepted,) have  anterior  to  the  passage  of  this  act,  performed 
any  of  the  functions  wliicli  they  are  especially  empowered  to 
do  by  the  provisions  of  this  act,  their  said  acts  shall  be  conclu- 
sive upon  the  rights  of  all  persons  and  parties  therein  con- 
cerned :  Provided,  thai  all  persons  and  parties  who  are  dissat- 
isfied ^fitll  the  exercise  of  said  functions  by  the  clerks  of  said 
courts,  shall  have  the  right  of  making  opposition  thereto  within 
forty  days  from  the  promulgation  of  this  act, 

Stat.  18th  3Iaych,  1852,  p.  206.— §  1.  The  clerks  of  the 
district  courts  throughout  the  State,  (the  parishes  of  Orleans 
and  Jefferson  excepted,)  shall  have  power  to  order  the  adver- 
tisements of  the  filing  of  tableaux  of  distribution  and  accounts 
of  tutors,  administrators,  curators,  executors  and  syndics,  and 
to  homologate  the  same  after  the  advertisement  required  by 
law  ;  Provided,  that,  if  opposition  be  made  to  such  tableaux 
or  accounts,  the  same  shall  be  referred  for  decision  to  the  dis- 
trict court,  and  all  further  proceedings  thereon  by  the  clerk 
shall  be  suspended. 

§  2.  No  tutor's  account,  or  account  of  any  administrator, 
curator,  executor  or  syndic,  presented  in  a  solvent  succession, 
stiaU  be  approved  by  the  clerk,  until  the  heirs  or  their  representa- 
tives, or  the  parties  interested  therein,  have  been  legally  cited 
in  the  manner  required  by  law  to  bring  parties  into  court  and 
the  legal  delays  for  ^answering  or  opposing  such  account  elapsed. 


284  OF    THE    DUTIES    AND    POWERS    OF    CLERKS, 

§  3.  The  first  Saturday  of  every  inontli  shall  be  fixed  as 
the  only  day  on  which  the  clerks  shall  have  the  right  to  homo- 
logate tableaux  and  accounts. 

§  4.  The  clerks  of  the  district  courts  shall  have  power  to 
receive,  file  and  record  all  mandates  and  decrees  rendered  by 
the  supreme  court  in  causes  taken  up  by  apjical  from  their 
respective  courts,  and  to  issue  all  legal  process  under  said  man- 
dates and  decrees  of  the  supreme  court. 

§  5.  Upon  the  death  or  insolvency  of  either  party  to  a 
cause,  it  shall  be  lawful  for  clerks  of  courts,  and  it  is  hereby 
made  their  duty,  on  the  application  of  any  party  interested, 
to  file  any  pleadings  required  for  the  purpose  of  making  the 
representatives  of  the  deceased  or  insolvent  party,  parties  to 
the  suit,  and  to  issue  the  necessary  process  for  said  j)inpose. 

No.  329.  Stat.  SOfh  April,  1853.— §  1.  The  clerks  of  the 
several  district  courts,  out  of  the  parish  of  Orleans,  shall  have 
power  to  issue  writs  of  arrests,  attachment,  sequestration  and 
provisional  seiziire,  and  to  grant  orders  for  setting  se(][uestra- 
tion  aside  and  fixing  the  amount  of  bonds  therefor.  They 
shall  have  the  power  to  administer  oaths  in  all  cases,  to  issue 
commissions,  to  take  the  testimony  of  witnesses  residing  out 
of  the  parish,  and  in  the  parish  where  it  is  made  to  appear 
that  the  witness  is  about  to  depart,  or  for  any  other  cause, 
the  party  desiring  his  testimony  may  have  cause  to  apprehend, 
that  he  will  othervidse  be  deprived  of  it,  and  to  appoint  commis- 
sioners to  execute  the  same,  and  to  fix  the  return  day  thereof. 
To  gi'ant  orders  for  affixing  seals,  taking  inventories,  and  mak- 
ing partitions,  and  to  order  the  execution  of  wills  ;  to  confirm 
testamentary  executors,  to  confirm  and  appoint  dative  testa- 
mentary executors,  administrators,  curators  of  vacant  succes- 
sions, and  absent  heirs,  and  attorney  of  absent  heirs,  after 
giving  the  notices  as  required  by  law,  to  grant  marriage  licen- 
ses, to  order  family  meetings,  and  homologate  their  jiroceed- 
ings,  if  no  opposition  is  made  thereto,  to  grant  orders  for  the 
sale  of  succession  property,  to  order  calls  in  waiTanty  and  to 


OF    THE    DUTIES    AND    POWERS    OF    CLERKS.  285 

issue  citations  thereon,  to  grant  orders  of  injunction  in  the 
absence  of  the  judge  from  the  parish,  or  when  the  judge  is  in- 
terested, and  when,  for  a  specific  sum  of  money,  shall  require 
bonds  in  an  amount  one-half  over  and  above  the  specific  sum 
so  enjoined.  But  when  the  sale  of  specific  property  is  enjoined 
by  the  defendant  or  any  third  party,  the  bond  shall  be  for  an 
amount  one-half  over  and  above  the  estimated  value  thereof, 
as  certified  to  by  the  officer  making  the  seizure  ;  said  injunc- 
tions may  be  issued  by  the  clerk,  on  the  oath  of  the  party  or 
his  attorney,  that  the  judge  is  absent  from  the  parish  or  for 
some  good  reason,  and  being  interested,  said  judge  is  unable  to 
give  the  order; 

§  2.  Said  clerk  shall  have  power  to  homologate  the  pro- 
ceedings of  meetings  of  creditors  of  insolvent  successions,  and 
take  the  necessary  bond  required  of  syndics,  to  issue  orders  for 
the  advertisement  of  the  filing  of  tableaux  of  tutors,  execu- 
tors, administrators,  curators  of  vacant  estates,  and  absent 
heirs,  syndics  (tf  insolvent  successions,  and  insolvent  debtors, 
and  to  homologate  the  same. 

§  3.  The  first  Saturday  in  every  month  shall  be  fixed  as 
the  only  day  on  which  the  clerks  shall  have  the  right  to  homo- 
logate accounts  and  tableaux  of  distribution  ;  and  no  account 
or  tableaux,  shall  be  approved  or  homologated  until  the  heirs 
or  their  legal  representatives,  or  the  parties  interested  therein, 
who  reside  within  the  parish  in  which  the  court  having  juris- 
diction of  the  matter  is  held,  shall  have  been  legally  cited  in 
the  manner  required  by  law,  to  bring  parties  into  court,  and 
the  legal  delay  for  considering  or  opposing  such  accounts  shall 
have  elapsed. 

§  4.  No  account  as  aforesaid  shall  be  homologated  and  ap- 
proved Until  the  heirs  or  their  representatives,  or  the  parties 
interested  therein,  who  reside  out  of  the  parish  in  which  the 
court,  having  jurisdiction  of  the  matter,  is  held,  shall  have 
been  notified  for  at  least  thirty  days,  which  notice  shall  be 
given  by  advertisement  in  the  same  manner,  as  an  advertise- 
ment of  sheriff  sales  are  made  in  said  parish,  and  shall  have 


286  OF    THE    DUTIES    AND    POWERS    OF    CLERKS. 

the  same  effect  as  a  citation  regularly  issued  and  served  ;  nor 
until  the  legal  delay  for  considering  and  opposing  such  accounts 
shall  have  elapsed  :  Provided,  that  neither  advertisement  nor 
citation  shall  he  necessiiiy  in  any  case  when  the  heirs  or  their 
legal  representatives,  or  other  persons  interested,  consent  to  the 
homologation  of  said  accounts. 

§  5.  Whenever  opposition  is  made  and  filed  to  the  homo- 
logation of  any  such  accounts  or  tableaux  within  the  time 
specified  in  the  notices,  and  at  any  time  before  the  same  shall 
have  been  hojnologated,  the  said  opposition  shall  be  referred 
for  decision  to  the  courts,  and  all  further  proceedings  therein 
by  the  clerk  shall  be  suspended. 

§  6.  It  shall  be  the  duty  of  the  several  clerks  to  keep  con- 
stantly posted  up  in  their  office  a  cojiy  of  all  the  successions, 
wherein  tableaux  and  accounts  havo  been  filed,  and  are  there 
pending  for  homologation. 

§  7.  The  clerks  may  appoint  deputies  Avho  shall  take  the 
oath  required  by  the  constitution  and  exercise  the  powers  now 
granted  to  the  deputy  clerks. 

Art.  774. — Clerks  shall  issue  all  orders  or  writs  in  the 
name  of  the  State  of  Louisiana  and  of  the  court  from  which 
they  issue,  and  shall  seal  them  with  the  seal  of  such  court, 
and  sign  them  with  their  own  names,  designating  their  quaUty 
as  clerks. 

Const.  1845,  art.  79.  Const.  1852,  art.  76. 

Art.  775. — Clerks  shall  keep  at  least  two  record  books. 

4  R.  52  ;  SCO  1045. 

Art.  776. — In  one  they  shall  set  down  in  order  the  titles 
of  aU  causes  depending  before  the  court,  mentioning  the  date 
of  the  fihng  of  the  petitions  or  answers,  and  the  names  of  the 
counsel  employed  by  the  parties. 

4  R.  52. 

Art.  777. — In  the  other  they  shall  set  down  all  the  orders 
and  judgments  rendered,  as  well  as  the  motions  made  by  the 
parties  or  their  counsel.  » 

4  R.  52. 


OF  TRANSLATORS,  CRIERS,  AND  CONSTABLES.    287 

Art,  778. — Both  these  records  shall  be  open  to  the  ins^jec- 
tion  of  all  parties  interested,  or  their  counsel,  and  shall  be 
accompanied  by  an  alphabet  containing  the  titles  of  the  causes 
with  the  number  of  the  pages  on  which  are  to  be  found  the 
motions,  orders,  or  judgments  relating  to  them. 

Art.  779. — Clerks  shall  preserve  with  the  greatest  care  the 
pleadings,  documents,  and  papers  confided  to  them,  as  well  as 
the  minutes  of  the  court,  and  they  shall  be  provided  with 
closets  or  desks  in  which  these  papers  may  be  kept  safely  and 
under  key. 

Art.  780. — Clerks  shall  have  power,  during  the  absence  of 
the  judge,  to  issue  orders  of  arrest,  sequestration,  attachment, 
and  provisional  seizure,  in  the  cases  provided  by  law.  They 
may  also  issue  commissions  to  examine  witnesses. 

Art.  781. — But  when  such  orders  of  arrest,  sequestration, 
attachment,  and  provisional  seizure,  issued  by  the  clerk,  have 
been  obtained  in  an  irregular  manner,  or  on  a  false  or  erroneous 
allegation  of  facts,  the  judges  alone  shall  have  the  power  of  re- 
scinding them. 

Art.  782. — Clerks  may  appoint  deputies,  for  whom  they 
shall  be  responsible,  and  who  shall  take  an  oath  before  the 
court,  to  fulfil  well  and  faithfully  all  the  duties  intrusted  to 
the  clerk  whom  they  represent,  and  their  appointment  shall  be 
mentioned  in  the  records. 

15  L.  33  ;  2  A.  247. 

Art.  783. — All  the  duties  imposed  by  law  on  sheriffs  and 
clerks  shall  continue  in  every  thing  not  contrary  to,  or  incom- 
patible with,  the  provisions  contained  in  the  jDresent  chapter. 

Sec.  III. — 'Of  Translators,  Criers,  and  Constables. 

Art.  784. — It  is  the  duty  of  the  translators  and  criers 
appointed  by  the  different  courts,  to  attend  jJunctually,  for  the 
fulfilment  of  the  duties  imposed  upon  them,  who  shall  hold 
their  offices  for  one  year. 


288  OF    ORDERS    WHICH    COURTS    OF    JUSTICE,  ETC. 

Art.  785. — If  there  be  no  translator  appointed,  or  he 
should  be  absent,  the  court  may  appoint  one,  if  necessaiy,  at 
the  request  of  one  of  the  parties,  who  shall  take  an  oath  to 
execute  well  and  faithfully  to  the  best  of  his  knowledge,  such 
translations  as  he  is  charged  with,  unless  the  attorneys  for  the 
parties  agree  that  they  themselves,  or  one  of  them  shall  do  it. 


CHAPTER  X. 

Of  Orders  which  Courts  of  Justice  may  render  in  certain 

Cases, 

Art.  786. — Besides  the  powers  which  are  granted  to  courts 
of  justice,  according  to  the  provisions  above  mentioned,  there 
are  others  conferred  on  them  in  certain  cases,  which  are  exer- 
cised in  a  summary  manner,  without  going  through  the  ordinary 
forms  of  action. 

It  is  of  these  powers  and  the  manner  of  their  exercise  that 
we  shall  treat  in  the  present  chai)tcr. 

Art.  787. — The  first  of  these  powers  is  that  of  issuing  the 
writ  of  habeas  corpus,  that  privilege  granted  to  all  free  jiersons 
of  being  released,  from  illegal  arrest  or  detention. 

Art.  788. — The  other  extraordinary  powers  belonging  to 
courts  of  justice,  may  be  divided  into  two  species,  wliich  are 
enumerated  in  the  two  following  articles. 

Art.  789. — Courts  of  justice  may,  in  certain  cases  hereaf- 
ter provided,  direct  orders  to  individuals  or  corporations  to  com- 
pel them  to  perform  certain  duties  prescribed  for  them  by  the 
law,  or  to  prevent  them  from  usurping  powers  which  do  not 
belong  to  them. 

1  A.  162;  see  2  L.  89. 

Art.  790. — Courts  of  appeal  have  the  right  to  issue  orders 
to  inferior  judges : 

1.  To  compel  them  to  render  justice  to  parties,  or  to  per- 
form certain  duties   belonging   to  their  office,  or  to  prevent 


OF    THE    WRIT    OF    HABEAS    CORPUS.  289 

them  from  usurping  an  authority  which  does  not  belong  to 
them ; 

2.  To  obHge  them  to  send  up  a  copy  of  their  proceedings, 
that  the  vaHdity  of  them  may  be  examined,  when  they  are  ac- 
cused of  having  violated  any  of  the  forms  of  law. 

Sec.  I. — Of  ilie  writ  of  Habeas  Corpus. 

Art.  791. — The  habeas  corpws  is  an  order  in  writing,  issued 
in  the  name  of  the  State,  by  a  judge  of  competent  jurisdiction, 
and  directed  to  a  person  who  has  another  in  his  custody,  or 
detains  him  in  confinement,  commanding  him  to  bring  before 
the  judge  the  person  thus  detained,  at  the  time  and  place  ap- 
pointed, and  to  state  the  reasons  for  which  he  thus  keeps  him 
imprisoned  and  deprived  of  liberty. 

6  L.  436. 

Art.  792. — The  district  judges  and  the  judge  of  the  crimi- 
nal court  of  New  Orleans,  and  the  courts  established  or  to  be 
established,  whose  jurisdiction  exceeds  three  hundred  dollars, 
shall  alone  have  the  right  of  granting  writs  of  habeas  corpus 
within  the  hmits  of  their  respective  jurisdictions,  except  in  the 
case  provided  by  the  following  article. 

Const.  1845,  art.  62.     Const.  1852,  art.  61,  69. 

Stat.  16th  3farch,  1828,  p.  156, 416.— Without  altering  in 
any  manner  the  powers  by  which  the  judge  of  tlie  parish  of 
Orleans  is  authorized  by  the  Code  of  Practice  to  issue  writs  of 
habeas  corpus  and  other  extraordinary  process,  it  shall  be  law- 
ful for  the  other  parish  judges  of  this  State  to  issue  writs  of 
mandamus,  certiorari  and  prohibition,  directed  to  the  justices 
of  the  peace  under  their  jurisdiction  to  compel  the  said  justices 
to  comply  with  the  duties  which  are  imposed  on  them  by  law, 
or  to  prevent  them  from  exceeding  the  limits  of  their  jurisdic- 
tion ;  and  that  the  said  jiarish  judges  may  issue  writs  of  habeag 
corpus  in  all  cases  not  capital. 

2  M.  86,  277,  279 ;  3  I^L  42 ;  6  M.  569;  6  L.  427 ;  8C0  1041. 

19 


290  OF   THE    WRIT   OF   HABEAS   CORPUS. 

Art.  793. — When  the  judge  of  any  district  is  absent,  in- 
terested, or  prevented  by  any  cause  whatever,  from  acting  in 
that  quahty,  and  there  is  no  criminal  court,  or  court  of  con- 
current jurisdiction  in  the  district,  the  habeas  corpus  may  be 
issued  by  any  judge  of  competent  jurisdiction,  in  one  of  the 
adjoining  districts.  But  in  this  case,  the  absence,  interest  or 
disability  of  the  judge  of  the  district  vs^here  the  imprisonment 
exists,  shall  be  made  to  appear  by  the  oath  of  the  petitioner, 
or  other  sufficient  proof. 

Art.  794. — The  habeas  corpus  may  be  obtained  on  a  peti- 
tion being  addressed  to  a  judge  who  has  the  power  of  granting 
it.  It  must  be  signed  by  the  party,  or  some  other  person  in 
his  name,  mentioning,  in  the  latter  case,  the  name  of  the  party 
confined. 

Art.  795. — This  petition  shall  state  in  substance,  that  the 
party  applying  is  imprisoned  or  deprived  of  hberty,  and  by 
whom,  if  the  person's  name  be  known,  or  if  it  be  not  known,  by 
designating  or  describing  liis  person,  as  far  as  possible. 

Art.  796. — If  the  imprisonment  or  detention  exists,  by  vir- 
tue or  under  pretext  of  a  judicial  order,  the  copy  of  such  order 
shall  be  annexed  to  the  petition,  or  the  petitioner  shall  allege 
that  a  copy  of  it  has  been  demanded  and  refused. 

Art.  797. — If  the  imprisonment  or  detention  took  place  by 
virtue  of  a  judicial  order,  regular  in  its  form,  but  illegally  ob- 
tained or  executed,  the  petition  shall  mention  in  what  the  ille- 
gality consists. 

Art.  798. — If  the  imprisonment  or  detention  has  not  been 
made  by  virtue  of  a  judicial  order,  the  petitioner  need  only 
allege  that  he  is  illegally  imprisoned  or  confined. 

Art.  799. — The  petition  shall  conclude  by  praying  for  a 
habeas  cprpus  ;  the  petitioner  shall  swear  that  it  contains  the 
truth  to  the  best  of  his  behef. 

Art.  800. — The  judge  to  whom  this  petition  is  presented, 
if  he  has  the  power  of  issuing  a  habeas  corpus,  shall  immedi- 
ately grant  one  to  the  petitioner,  unless  it  appear  by  the  peti- 
tion itself,  or  by  the  documents  annexed  to  it,  that  the  party 
?-annot  be  set  at  liberty,  nor  admitted  to  bail. 


OF    THE    WRIT    OF    HABEAS    CORPUS.  291 

Art.  801.— The  habeas  corpus  may  be  granted  in  court, 
with  the  signature  of  the  clerk  and  the  seal  of  the  court,  or  out 
of  court  under  the  signature  alone  of  the  judge,  to  whom  the 
petition  is  presented. 

Art.  802.— The  habeas  corpus  may  be  served  by  any  free 
wliite  male  person,  capable  of  giving  evidence. 

Art.  803.— The  person  to  whom  the  writ  is  delivered,  may 
serve  it  by  delivering  it  to  the  person  to  whom  it  is  addressed, 
or  who  keeps  the  party  in  confinement ;  and  if  that  person  re- 
fuses to  receive  the  ^vrit,  he  who  is  charged  to  serve  it  shaU 
inform  him  of  its  contents. 

But  if  the  person  to  whom  the  habeas  corpus  is  addressed, 
conceals  himself  or  refuses  admittance  to  the  person  charged 
to  serve  it  on  him,  the  latter  shall  affix  the  order  on  the  cx°te- 
nor  of  the  place  where  the  person  resides,  or  in  which  the  pe- 
titioner is  confined. 

Art.  804.— The  service  of  the  habeas  corpus  shaU  be  prov- 
ed by  the  affidavit  of  the  person  directed  to  serve  it. 

Art.  805.— It  is  the  duty  of  the  person  on  whom  a  habeas 
corpus  IS  served,  whether  it  be  directed  to  him  or  not,  to  obey 
and  return  the  order  without  delay,  to  the  court  which  issu- 
ed it. 

Art.  806.— Obedience  to  the  habeas  corpus  is  manifested 
on  the  part  of  the  person  to  whom  it  is  directed,  by  his  pro- 
ducing the  person  to  be  set  at  liberty,  if  that  person  be  in  his 
custody  ;  and  by  making  on  the  back  of  the  order  or  separate- 
ly, his  answer  in  writing,  in  the  form  and  manner  hereafter 
directed. 

Art.  807.— The  person  on  whom  a  habeas  corpus  is  served 
shall  declare  positively  in  his  answer  :  ' 

1.  Whether  he  has  or  has  not  in  his  power  or  custody,  the 
person  to  be  set  at  Hberty,  or  whether  that  person  is  confined 
by  him. 

^  2.  By  what  authority  or  for  what  cause  he  arrested  or  de- 
tained him. 

Art.  808.— If  the  person  on  whom  a  habeas  corpus   is 


292  OF    THE    WRIT    OF    HABEAS    CORPUS. 

served  had  held  the  petitioner  in  confinement,  or  had  detained 
him  within  three  days  preceding  the  service,  or  had  transfer- 
red the  custody  to  anotlier,  he  shall  state  particularly  in  his  'f 
answer  to  whom,  at  what  time,  for  what  cause,  and  by  what 
authority,  he  made  the  transfer. 

Art.  809. — If  the  prisoner  be  kept  in  custody  by  virtue 
of  a  judicial  order,  the  original  of  that  order  must  be  annexed 
to  the  answer. 

Art.  810. — This  answer  must  be  signed  and  sworn  to  by 
the  person  making  it. 

Art.  811. — Whenever  a  habeas  coqjus  shall  have  been  ob- 
tained for  a  person  who  is  confined  by  \drtue  of  a  final  judg- 
ment, or  order  of  any  competent  tribunal  of  ci\al  or  criminal 
jurisdiction,  the  oflicor  having  the  legal  custody  of  such  per- 
son need  not  produce  him,  unless  specially  ordered  to  do  so, 
notwithstanding  such  final  judgment,  in  the  cases  laid  doAvn  in 
the  following  article,  and  it  shall  be  sufficient  for  him  to  return 
the  habeas  corpus,  with  his  answer  in  writing  annexing  the 
judgment  or  order  by  Adrtue  of  which  the  person  is  confined. 

Art.  812. — The  judge  may  direct  that  the  person  confined 
shall  be  produced  before  him,  notwithstanding  any  final  judg- 
ment, sentence,  or  order  under  which  he  may  have  been  de- 
prived of  liberty,  if  it  appears  to  him,  that  from  some  cause 
expressed  in  the  affidavit  on  which  the  habeas  corpus  was 
granted,  or  in  the  answer  accompanying  the  return  of  the  writ, 
this  production  is  necessary,  to  enable  him  to  grant  to  the  par- 
ty the  relief  prayed  for. 

Art.  813. — The  return  of  a  habeas  coii)Us  shall  be  made 
in  twelve  hours  after  its  service,  or  sooner,  if  it  be  so  ordered 
by  the  writ,  in  every  case  where  the  place  of  confinement  is 
not  more  than  twelve  miles  from  that  to  which  the  return  is 
to  be  made. 

If  the  person  confined  is  at  a  greater  distance,  the  time 
for  the  return  shall  be  increased  one  day  for  every  twenty  miles 
distance,  and  so  in  proportion  for  shorter  distances. 

Art.  814. — When  the  habeas  corpus  has  been  duly  served; 


OF    THE    WRIT    OF    HABEAS    CORPUS.  293 

if  the  party  in  whose  favor  it  has  been  granted,  is  not  produc- 
ed within  the  time  above  fixed,  the  judge  who  issued  the  writ, 
shall  issue  a  warrant  to  some  officer  of  justice,  commanding 
him  to  arrest  and  take  in 'charge  the  person  who  disobeyed  the 
writ,  and  to  bring  such  person  before  him,  to  be  proceeded 
against  according  to  law. 

Art.  815. — If  the  person  thus  brought  before  the  judge, 
refuses  to  deliver  the  habeas  corpus  which  has  been  served  up- 
on him,  or  to  produce  the  party  whom  he  was  ordered  to  pro- 
duce in  the  cases  where,  according  to  the  above  provisions, 
he  might  be  compelled  to  do  it,  he  shall  be  sent  to  prison,  and 
shall  remain  there  until  he  obeys  the  habeas  corpus  ;  and 
shall  be  comdemned  to  pay  all  the  costs  of  the  proceeding,  be- 
sides the  action  for  false  imprisonment,  which  the  party  may 
institute  against  him. 

Art,  816. — Whenever,  by  reason  of  the  sickness  or  infirm- 
ity of  the  party  confined,  he  cannot  be  brought  before  the 
judge,  without  endangering  his  life,  he  who  has  liim  in  confine- 
ment, shall  mention  it  in  his  answer  on  returning  the  habeas 
corpus  :  and  if  this  act  be  proved  by  the  certificate  of  a  phy- 
sician or  surgeon,  regularly  authorized  to  practice,  and  by  the 
declaration  of  two  other  witnesses,  and  the  signature  of  the 
party  confined,  if  he  can  write,  if  the  answer  appears  to  him 
sufficient  in  other  respects,  the  judge  shall  repair  to  the  place 
where  the  party  is  confined,  if  he  can  do  it  without  quitting 
the  place  of  holding  his  usual  sittings,  otherwise  he  may  de- 
termine on  the  habeas  corpus,  in  the  same  manner  as  if  the 
party  was  produced  before  him. 

Art.  817. — If  the  person  confining  the  petitioner,  cannot 
produce  him,  because  he  is  dead,  or  through  some  other  una- 
voidable accident,  or  overpowering  force,  he  shall  mention  it 
in  his  answer  to  the  writ,  but  this  fact,  to  form  an  excuse, 
must  be  proved  in  a  perfectly  satisfactory  manner  to  the 
judge. 

It  is  to  be  understood,  that  in  this  case,  and  in  every  other, 
where  the  person  confining  another,  is  bound  to  make  proof 


294  OF    THE    WRIT    OF    HABEAS   CORPUS. 

of  the  causes  which  prevent  producing  him,  proof  to  tlie  con- 
trary may  l)c  offered  by  the  person  who  obtained  tlie  habeas 
corpus. 

Art.  818. — If  the  person  kepf  in  confinement  is  repre- 
sented before  the  judge,  he  may  deny  all  the  facts  stated  in 
the  answer  to  the  Jtahcas  corpus,  or  he  may  allege  others  on 
his  side,  to  show  that  liis  detention  or  imprisonment  is  illegal, 
or  that  he  has  a  right  to  be  set  at  liberty  ;  wliich  denials  and 
allegations  shall  be  made  imdcr  oath. 

Art.  819. — The  judge  shall  then  proceed  in  a  summary 
manner  to  hear  the  testimony  and  the  reasons  adduced,  as 
well  by  the  party  confined  as  by  the  party  confining,  and  shall 
pronounce  on  the  whole  subject  as  the  nature  of  the  case  may 
require,  and  according  to  the  rules  hereafter  estabhshcd. 

Art.  820. — If  the  judge  cannot  pronounce  immediately  on 
the  habeas  corpus,  he  may,  until  his  judgment  is  rendered, 
commit  the  j^arty  to  the  sheriff  of  the  parish  where  the  writ  is 
issued,  or  to  such  other  person  as  the  age  of  the  party  and 
other  circumstances  may  render  proper. 

Art.  821. — If  it  appear  to  the  judge,  by  the  return  of  the 
habeas  corpus,  or  by  the  documents  which  accompany  that 
return,  that  the  person  whose  liberation  is  solicited  is  detained 
by  virtue  of  an  order  rendered  in  a  civil  suit,  or  at  the  request 
of  an  individual  having  an  interest  in  his  confinement,  the 
said  judge  shall  not  pronounce  on  the  habeas  corpus  unless  it 
be  proved  to  his  satisfaction,  that  previous  reasonable  notice  in 
writing  has  been  given  to  the  plaintifi'  in  such  civil  action,  or 
to  any  other  party  interested,  or  his  agent  or  attorney,  if  they 
are  not  more  than  twenty  miles  distant  from  the  j)lace  where 
the  habeas  corpus  has  been  obtained. 

Art.  822. — If  it  appear  to  the  judge,  from  the  return  to 
th3  writ  or  from  the  accompanying  documents  that  the  party 
is  confined  by  the  order  of  some  tribunal,  he  can  only  restore 
such  party  to  liberty  in  the  following  cases  : 

1.  Where  such  tribunal  has  exceeded  its  jurisdiction,  as 
defined  by  law : 


OF    THE    WRIT    OF    HABEAS    CORPUS.  295 

2.  Where  the  original  imprisonment  was  lawful,  but  by 
some  act,  omission  or  event  which  has  since  occurred,  the  par- 
ty becomes  entitled  to  his  liberty  : 

3.  Where  the  order  of  imprisonment  is  deficient  in  some 
legal  requisite  : 

4.  Where  the  order,  although  in  due  legal  form,  lias  been 
rendered  in  a  case  where  the  law  docs  not  allow  the  issuing  of 
orders  of  arrest  or  imprisonment : 

5.  Where  the  order  is  in  due  form,  but  has  been  rendered 
or  executed  by  a  person  not  authorized  for  that  purpose,  or 
where  the  person  detaining  the  prisoner  is  not  the  person  to 
whom  the  law  has  prescribed  that  duty  : 

6.  Where  the  order  appears  to  have  been  obtained  under 
false  pretences,  or  by  corruption  : 

7.  Where  there  exists  no  general  law,  judgment,  order  or 
decree  of  a  court  of  justice,  if  it  be  in  a  ci\'il  suit,  or  sentence 
of  comdction,  if  in  a  criminal  suit,  to  justify  the  imprison- 
ment. 

Art.  823. — The  judge  pronouncing  on  the  habeas  corpus 
can  no  other^vise  examine  the  validity  or  propriety  of  the  judg- 
ment or  decree  of  a  regularly  constituted  tribunal,  under 
which  the  imprisonment  has  taken  place  ;  and  whenever  it 
shall  appear  to  liim  that  there  exists  sufficient  legal  ground  for 
the  detention  of  the  prisoner,  on  account  of  any  offence  with 
which  he  may  be  charged,  althougli  the  order  of  imprisonment 
may  have  been  rendered  in  an  irregular  and  unauthorized 
manner,  or  have  been  executed  by  a  person  not  duly  author- 
ized for  the  purpose,  the  judge  shall  render  a  new  order  of  ar- 
rest, in  regular  form,  directed  to  the  proper  officer,  or  admit 
the  party  to  bail,  if  the  nature  of  the  offence  allows  it. 

Art.  824. — But  if  it  shall  appear  to  the  judge  from  the 
return  and  annexed  documents,  or  otherwise,  that  there  is  no 
cause  for  arrest  or  confinement,  or  if  he  thinks  that  such  ar- 
rest and  confinement  cannot  legally  continue,  he  shall  imme- 
diately set  the  i)risoner  at  hbcrty. 

Art.  825. — But  if  the  judge  decide  that  the  party  cannot 


296  OF   OTHER    ORDERS. 

be  released  from  confinement,  nor  admitted  to  bail,  be  sbaU 
remand  him  to  prison,  or  place  liim  under  the  same  custody 
in  which  he  was,  if  tlie  detention  was  legal  ;  otherwise  he 
shall  place  him  in  the  custody  of  the  person  to  whom  the  law 
confides  such  duties. 

Art.  826. — A  party  discharged  from  imprisonment  under 
a  habeas  corjms,  in  a  criminal  proceeding,  through  deficiency 
of  proof,  or  some  important  defect  in  the  warrant  of  imj)rison- 
ment,  may  be  an'ested  and  confined  anew,  on  satisfactory 
proof,  and  imder  a  legal  warrant,  although  it  be  for  the  same 
ofience. 

Art.  827. — So  also  in  a  civil  suit,  a  party  who  has  been 
released  on  account  of  illegality  of  the  warrant  under  which 
be  is  confined,  or  want  of  authority  in  the  person  confining 
bim,  may  be  arrested  anew  and  imprisoned,  for  the  same  cause 
of  action,  provided  it  be  done  in  a  legal  manner. 

Sec.  II. — 0/  other  Orders  which  Courts  of  Justice  may 
render. 

Art.  828. — Besides  the  habeas  corjnis,  there  are  four  other 
species  of  orders  wliich  courts  of  justice  may  issue,  to  wit  : 

1.  The  order  directing  the  j)erformance  of  some  specific 
act ;  (writ  of  mandamus.) 

2.  The  order  forbidding  further  proceedings  in  a  suit  ;  (writ 
of  prohibition.) 

3.  The  order  of  which  the  object  is  to  pronounce  on  the 
vabdity  of  a  judicial  proceeding  ;  (writ  of  certiorari.) 

4.  The  order  of  which  the  object  is  to  prevent  an  usurpa- 
tion ;  (writ  of  quo  warranto.) 

1  A.  162. 


OF   OTHER    ORDERS.  297 

§  1.   Of  the  order  directing  the  performance  of  some  specific  act, 
{writ  of  mandamus^ 

Art.  829. — Tliis  is  an  order  issued  in  the  name  of  the 
State,  by  a  tribunal  of  competent  jurisdiction,  and  addressed 
to  an  indi\adual,  or  corporation,  or  court  of  inferior  jurisdiction, 
directing  it  to  perform  some  certain  act,  belonging  to  the  place, 
■?uty,  or  quality  with  which  it  is  clothed. 

4  R.  227  ;  11  R.  285;  see  11  L.  285. 

Art.  830. — The  object  of  this  order  is  to  prevent  a  denial 
of  justice,  or  the  consequence  of  defective  police,  and  it  should 
therefore  be  issued,  in  all  cases  where  the  law  has  assigned,  no 
relief  by  the  ordinary  means,  and  where  justice  and  reason  re- 
quire that  some  mode  should  exist  of  redressing  a  wrong,  or 
an  abuse  of  any  nature  whatever, 

4  R.  227. 

Art.  831. — This  order  may  be  issued,  at  the  discretion  of 
the  judge,  even  when  a  party  has  other  means  of  relief,  if  the 
slowness  of  ordinary  legal  forms,  is  hkely  to  produce  such  a 
delay  that  the  public  good  and  the  administration  of  justice 
will  sutler  from  it. 

3  M.  171,  182  ;  5  M.  271 ;  2  N.  S.  571 ;  4  N".  S.  189  ;  7  N.  S.  1 ;  2  L.  88,  394,  503 ; 
4L.  14;  6  L.  595;  8L.  79;  9  L.  94,579;  11  L.  38. 

Art.  832. —  This  order  may  be  directed  to  individuals, 
whether  holding  offices  or  not,  to  corporations,  and  to  judges 
of  inferior  tribunals. 

Art.  833. — It  may  be  directed  to  a  simj^le  individual,  as  to 
the  heirs  or  other  legal  representatives  of  a  deceased  public 
officer,  or  to  such  officer  himself  if  he  be  alive,  or  has  resigned, 
or  been  removed,  to  compel  them  to  deliver  to  the  successor 
of  such  officer,  the  papers  and  other  eflfects  belonging  to  his 
office. 

Art.  834. — It  may  be  directed  to  public  officers  to  compel 
them  to  fulfil  any  of  the  duties  attached  to  their  office,  or 
which  may  be  legally  required  of  them. 

2  L  395. 


298  OF    OTHER    ORDERS. 

Art.  835. — It  may  be  directed  to  all  corporations  estabUslicd 
by  law : 

1.  To  compel  them  to  make  elections,  and  perform  the  other 
duties  re(|uired  by  their  charter  ; 

2.  To  compel  them  to  receive  or  restore  to  their  functions, 
such  of  their  members  as  they  .sliall  have  refused  to  receive,  al- 
though legally  cliosen,  or  whom  they  shall  have  removed  Avitli- 
out  sufficient  cause. 

5  L.  332;  6  L.  598;  "7  L.  511;  9  L.  332;  11  L.  369;  sec  607. 

Art.  836. — This  order,  in  all  the  above-mentioned  cases, 
can  only  be  issued  by  courts  whose  jurisdiction  in  civil  matters 
exceeds  the  sum  of  three  hundred  dollars. 

Art.  837. — It  may  be  directed  more  particularly  to  judges 
of  inferior  courts,  commanding  them  to  render  justice,  and  to 
perform  the  other  duties  of  their  office  conformably  to  law. 

1  A.  25. 

Art.  838. — In  this  last  case,  the  order  (or  writ  of  manda- 
mus) issues  not  only  when  the  judges  of  inferior  courts  are 
guilty  of  a  denial  of  justice  or  unreasonable  delay,  in  pronounc- 
ing judgment  on  causes  before  them,  but  also  if  they  refuse  or 
neglect  to  perform  .any  of  the  duties  required  of  them  by  law, 
or  which  may  enable  the  superior  courts  to  exercise  their  a^)- 
pellate  jurisdiction. 

Art.  839. — It  is  only  the  court  which  exercises  appellate 
jurisdiction  over  an  inferior  court  that  can  direct  to  the  latter 
an  order  to  perform  any  of  the  duties  belonging  to  it. 

7  L.509;  8  L.  76,  202;  9  L.  93,  326,  570;  11  L.  37,  38,  360;  12  L.  118;  8  H.  5; 

11  R.  285. 

Art.  840. — The  party  wishing  to  obtain  an  order  in  any 
of  the  cases  mentioned  in  tliis  paragraph,  must  apply  to  any 
competent  tribunal  by  petition,  stating  the  nature  of  his  right, 
or  of  the  injury  he  sustains,  or  of  the  denial  of  justice  which 
he  experiences,  and  shall  make  oath  of  the  truth  of  the  facta 
thus  alleged. 

Art.  841. — The  court  to  whom  the  complaint  is  addressed, 


OF  OTHER  ORDERS.  299 

if  it  thinks  there  is  ground  for  interposing  its  authority,  shall 
issue  an  order  addressed  to  the  party  or  to  the  inferior  judge, 
against  whom  the  complaint  is  made,  by  which  he  shall  be 
directed  to  do  what  has  been  demanded  of  him,  or  show  cause 
to  the  contrary,  within  a  certain  time  after  the  service  of  the 
order,  to  be  fixed  by  the  court. 

Art.  842. — If,  on  the  day  assigned  for  answering  the  order, 
the  party  or  judge  to  whom  it  is  directed  answers  and  states 
sufficient  reasons  to  justify  his  conduct,  the  complaint  shall  be 
dismissed,  and  the  petitioner  sentenced  to  pay  costs. 

Art.  843. — But  if  the  answer  is  considered  insufficient, 
then  a  peremptory  mandate  shall  issue,  ordering  the  party  or 
inferior  judge  to  do  what  has  been  demanded  of  him,  and  if  he 
does  not  obey,  an  order  of  airest  shall  issue,  and  he  shall  be 
imprisoned  until  he  has  rendered  obedience  to  the  mandate. 

Art.  844. — When  the  mandate  directing  the  performance 
of  a  specified  act  shall  have  issued  against  a  corporation,  the 
notice  shall  be  served  on  the  mayor  or  presiding  officer  of  such 
corporation  ;  and  if  the  corporation  or  the  body  of  directors 
disobey  the  order,  it  shall  be  punished  for  the  contempt  by  the 
sequestration  of  its  revenue  (writ  of  distringas)  until  it  yield 
obedience  to  the  mandate. 


§  2.  Of  the  Order  forbidding  further  Proceedings  in  a  Suit,  {Writ 
of  Prohibition. ) 

Art.  845. — This  mandate  only  issues  to  courts  or  inferior 
judges  which  exceed  the  bounds  of  their  jurisdiction. 

5  R.  21. 

Art.  846. — It  is  an  order  rendered  in  the  name  of  the  State, 
by  an  appellate  court  of  competent  jurisdiction,  and  directed  to 
the  judge  and  to  the  party  suing,  in  a  suit  before  an  inferior 
court,  forbidding  them  to  proceed  further  in  the  cause,  on  the 
ground  that  the  cognizance  of  the  said  cause  does  not  belong 
to  such  court,  but  to  another,  or  that  it  is  not  competent  to 
decide  it. 

5  R.  27. 


300  OF    OTHER   ORDERS. 

Art.  847. — To  obtain  this  mandate,  the  defendant  who 
complains  that  the  inferior  court  wishes  to  ti-anscend  its  juris- 
diction, shall  apply  by  petition  to  the  court  having  cognizance 
of  appeals  from  such  inferior  court,  stating  the  cause  and  na- 
ture of  the  action  brought  against  him,  and  showing  that  the 
said  court  is  not  competent  to  try  it. 

Art.  848. — The  court  to  which  tliis  petition  is  olFercd, 
shall  require  the  oath  of  the  petitioner  to  the  truth  of  the  facts 
stated  in  it,  unless  these  facts  be  proved  by  the  mere  ex- 
amination of  the  prayer,  or  of  the  proceedings  which  took  place 
before  the  inferior  court. 

19  L.  174;  7  R.  550.    ■ 

Art.  849. — If  the  court  shall  think  that  the  matters  stated 
in  the  petition  are  sufficient,  it  shall  issue  an  order  forbidding 
the  judge  to  take  cognizance  of  the  cause,  and  forbidding  the 
plaintiff  to  prosecute  it  further. 

19  L.  174;  9  R.  480. 

Art.  850. — When,  on  the  receipt  of  this  order,  the  inferior 
judge  acknowledges  that  he  has  no  jurisdiction,  he  shall  ab- 
stain from  all  further  acts  in  the  case. 

9  R.  480. 

Art.  851. — But  if  he  believes  himself  competent,  he  may 
give  a  written  answer  to  the  order,  after  which  the  court  is- 
suing it  shall  pronounce  finally  and  summarily  on  the  right  of 
jurisdiction;  and  if  he  thinks  that  the  inferior  judge  is  not 
competent  to  judge  the  cause,  it  shall  render  its  prohibition 
perpetual,  otherwise  it  shall  allow  the  judge  to  proceed  to  the 
trial  and  judgment  of  the  case. 

9  R.  480. 

Art.  852. — If,  in  contempt  of  the  order,  the  judge  or  the 
party  shall  proceed  any  further  in  the  suit,  the  superior  tri- 
bunal shall  cause  them  to  be  arrested,  and  shall  punish  them 
for  such  contempt,  and  the  opposite  party  shall  have  an  action 
for  his  damages  against  them. 

Art.  853. — If  an  inferior  judge  has  rendered  judgment  in 


OF    OTHER   ORDERS.  301 

a  case  where  he  had  not  jurisdiction,  and  the  execution  has 
issued,  the  court  may  direct  its  order  as  well  to  the  party  pro- 
secuting, as  to  the  officer  charged  with  the  execution,  forbid- 
ding them  to  proceed  in  the  execution,  in  the  same  manner  as 
if  the  prohibition  had  been  addressed  to  the  judge  before  issu- 
ing the  order  of  execution,  and  under  the  same  penalties  above 
enacted. 

5  R.  27, 

Art.  854. — But  in  tliis  case,  the  party  prosecuting  may 
reply  to  the  order,  in  the  same  manner  as  above  directed,  for 
obtaining  judgment  with  regard  to  the  jurisdiction  of  the  in- 
ferior judge. 

§  3.  Of  the  Mandate^  having  for  its  object  to  ascertain  the  validity  of 
judicial  proceeding,  {icrit  of  certiorari.) 

Art.  855. — This  also  is  an  order  rendered  in  the  name  of 
the  State,  by  a  competent  tribunal,  and  dii'ccted  to  an  inferior 
judge,  commanding  him  to  send  to  such  tribunal,  a  certified 
copy  of  the  proceedings  in  a  suit  jiending  before  liim,  to  the 
end  that  their  vaUdity  may  be  ascertained. 

Art.  856. — This  mandate  concludes  by  enjoining  upon  the 
inferior  judge  to  proceed  no  further  in  the  case,  untU  judg- 
ment shall  be  pronounced  on  the  regularity  of  his  proceed- 
ings. 

Art.  857. — This  mandate  is  only  granted  in  cases  where 
the  suit  is  to  be  decided  in  the  last  resort,  and  where  there 
lies  no  appeal,  by  means  of  which  proceedings  absolutely  void 
might  be  set  aside,  as  when  the  inferior  judge  has  refused  to 
hear  the  party  or  his  witnesses,  or  has  pronounced  sentence 
without  having  cited  him  to  appear. 

5  N.  S.  90 ;  6  N.  S.  382 ;  see  899. 

Art.  858. —  The  party  wishing  to  obtain  tliis  mandate  shall 
address  his  petition  to  a  competent  tribunal,  in  which  he  shall 
state  the  causes  of  nullity  of  the  acts  done  by  the  lower  court 
to  his  prejudice,  in  a  cause  where  there  lies  no  appeal 

6  N.  S.  381 ;  5  L.  379. 


302  OF   OTHER    ORDERS. 

Art.  859. — The  tnith  of  the  facts  contained  in  this  peti- 
tion, sliall  be  sworn  to  by  the  party  praying  for  the  mandate, 
but  with  respect  to  the  nullities  alleged,  he  need  only  affirm 
their  existence  to  the  best  of  his  knowledge. 

Art.  860. — This  mandate  can  only  be  directed  to  an  in- 
ferior judge  by  the  court  having  immediate  appellate  jurisdic- 
tion over  him,  and  by  no  other. 

Art.  861. — The  inferior  judge  to  whom  this  mandate  is 
directed  shall  immediately  send  to  the  superior  court  a  certi- 
fied copy  of  the  record  called  for,  which  copy  shall  be  sealed 
with  the  seal  of  the  court,  if  it  have  one. 

Art.  862. — If  after  the  service  of  the  mandate  and  the 
injunction  contained  in  it,  the  inferior  judge  does  not  send  the 
coi^y  of  the  record  called  for,  or  if  he  proceeds  further  in  the 
cause,  the  superior  court  shall  order  him  to  be  arrested  and 
imprisoned  until  he  shall  have  obeyed  the  mandate  directed  to 
him. 

Art.  863. — The  mere  service  of  the  order  to  send  up  the 
record,  renders  void  every  act  which  may  have  been  subse- 
quently performed  by  the  judge  to  whom  it  was  directed,  or  by 
his  order. 

Art.  864. — If  upon  examining  the  certified  record  thus 
sent,  it  shall  appear  to  the  court  issuing  the  mandate,  that  the 
proceedings  are  null  and  have  not  been  sanctioned  by  the  party 
complaining  of  them,  it  shall  avoid  the  proceedings  and  direct 
the  inferior  judge  to  try  the  cause  anew,  in  conformity  with 
the  provisions  of  the  law. 

Art.  865. — If  the  court  which  issued  the  mandate,  finds 
that  the  proceedings  have  been  regular,  or  that  the  party  has 
waived  his  objection  to  them,  it  shall  dissolve  the  order  which 
it  had  issued,  and  shall  condemn  the  party  who  applied  for  the 
mandate  to  pay  the  whole  costs. 

Art.  866. — When  a  court  of  competent  jurisdiction  issues 
a  mandate  for  the  purpose  of  inquiring  into  the  validity  of  a 
proceeding,  in  the  last  resort,  if  judgment  has  been  rendered 
and  execution  sued  out  in  the  court  below,  it  may  arrest  the 


OF    OTHER    ORDERS.  303 

execution,  by  enjoining  the  party  suing  it  and  the  officer 
charged  with  it,  to  proceed  no  further  until  the  validity  of 
the  proceedings  has  been  pronounced  upon,  and  tliis  under  the 
same  penalties  Avhich  are  inflicted  for  contempt  of  court. 

§  4.   0/*  the  mandalc  to  2^rcvcnt  an  usurpation  of  office,  {ivrit  of 
quo  warra7ito.) 

Art.  867.  — This  is  an  order  rendered  in  the  name  of  the 
State,  by  a  oompetent  court,  and  directed  to  a  person  who 
claims  or  usurps  an  office,  in  a  corporation,  inquiring  by  what 
authority  he  claims  or  holds  such  office. 

6  L.  598;   1  A.  162. 

Art.  868. — This  mandate  is  only  issued  for  the  decision  of 
disputes  between  parties,  in  relation  to  the  offices  in  corpora- 
tions^ as  when  a  person  usurps  the  character  of  mayor  of  a 
city,  and  such  like. 

With  regard  to  offices  of  a  pubhc  nature,  that  is,  which 
are  confen-ed  in  the  name  of  the  State,  by  the  governor,  with 
or  without  the  consent  of  the  senate,  the  usurpations  of  them 
are  prevented  and  punished  in  the  manner  directed  by  the 
penal  code. 

1  A.  162. 

Art.  869. — A  mandate  to  prevent  the  usurpation  of  an 
office  in  a  city  or  other  corporation,  may  be  obtained  by  any 
person  applying  for  it,  and  the  party  to  whom  it  is  directed 
must  make  his  answer  in  writing,  within  the  time  allowed  by 
the  court,  and  state  the  authority  under  which  he  exercises 
his  office. 

1  A.  162. 

Art.  870. — If  the  person  to  whom  the  order  is  directed 
does  not  answer  within  the  time  allowed,  the  cGurt  shall  de- 
clare him  not  qualified  to  ffil  the  place  of  which  he  performs 
the  duties,  shall  forbid  him  to  perform  them  any  longer,  shaU 
condemn  him  to  pay  the  costs,  and  shall  direct  the  corporation 
to  proceed  to  a  new  appointment. 

1  A.  162. 


304  OF    OTHER   ORDERS. 

Art.  871. — But  if  the  person  to  whom  the  order  is  direct- 
ed, answer  within  the  time  allowed,  the  court  shall  pronounce 
upon  the  answer,  in  a  summary  manner,  and  after  hearing  the 
parties,  if  he  thinks  that  the  person  to  whom  the  mandate  was 
directed,  has  usurped  the  office  which  he  holds,  or  that  he  con- 
tinues in  it  unlawfully,  it  shall  render  judgment  against  him, 
in  the  manner  pronded  in  the  preceding  article. 

1  A.  162. 

Art.  872. — All  mandates  treated  of  in  the  second  section 
of  tliis  chapter,  shall  be  issued  by  the  clerk,  in  the  name  of 
the  State  and  of  the  court  which  renders  them,  shall  be  sealed 
with  the  seal  of  such  court,  and  signed  by  the  clerk  in  his  of- 
ficial character. 

These  mandates  shall  be  dehvered  to  the  sheriff,  who  shall 
serve  them  on  the  persons  to  whom  they  are  directed. 

See  828. 

Art.  873. — When  the  legislature  has  granted  to  a  corpo- 
ration the  right  to  determine  the  validity  of  the  elections  of 
its  members  or  officers,  courts  of  justice  shaU  not  issue  man- 
dates for  the  purpose  of  inquiring  into  that  fact. 


OF   PROCEEDINGS   IN    THE    SUPREME    COURT.  305 


TITLE   11. 

OF  PROCEEDINGS  IN  THE   SUPREME  COURT  OF 
THE  STATE. 

Art.  874. — The  supreme  court  has  only  appellate  jurisdic- 
tion, which  it  exercises  in  all  civil  cases,  where  the  object  in 
dispute  exceeds  the  sum  of  three  hundred  dollars. 

Const.  1845,  art.  63.   Const.  1852,  art.  G2. 

IN.S.  140;  2N.S.  314;  5  N.S.  10,  87,  506,645;  6  N.  S.  457  ;  8  N.  S.  285,  838; 

1  L.  178;  3  L.  446;  8  L.  164;  9  R.  163. 

Art.  875 — The  supreme  court  has  jurisdiction,  though  the 
judgment  appealed  from  be  for  less  than  three  hundred  dollars, 
if  the  demand  was  for  more  than  that  sum. 

2  A.  212. 

Art.  876. — It  has  also  jurisdiction  by  apj)eal,  of  the  ap- 
pointment of  tutors  or  curators  of  minors,  inderdicted,  or  ab- 
sent persons,  or  of  vacant  estates  and  of  syndics  of  the  credi- 
tors of  an  insolvent,  if  the  property  which  is  to  be  placed  un- 
der the  charge  of  such  tutors,  curators  or  syndics  amount  to 
more  than  three  hundred  dollars. 

11  L.  40;  see  680,1049. 

Art.  877. — The  supreme,  as  well  as  other  courts,  possesses 
the  powers  which  are  necessary  for  the  exercise  of  the  jurisdic- 
tion given  to  it  by  law,  in  aU  the  cases  not  expressly  provided 
for  by  the  present  code. 

'  5  K.  59. 

Art.  878. — It  may  direct  to  courts  immediately  under  its 
jurisdiction,  not  only  such  mandates  as  are  mentioned  in .  the 
second  section  of  the  tenth  chapter  of  the  preceding  title,  for 
20 


E06  OF   PROCEEDINGS    IN    THE    SUPREME    COURT. 

the  purpose  of  insuring  the  better  administration  of  justice, 
but  also  such  as  it  shall  judge  necessary,  to  enable  it  to  exer- 
cise the  appellate  jurisdiction  which  it  has  over  those  courts. 

8  L.  80 ;  see  828,  848. 

Art.  879. — The  supreme  court  may  also  make  such  rules 
as  it  may  think  proper  to  determine  the  form  of  proceeding 
before  it,  in  cases  not  provided  for  in  the  present  code,  and 
not  inconsistent  with  its  provisions,  or  which  may  hereafter  be 
provided  for  by  law. 

Art.  880. — The  supreme  court  may  be  adjourned  by  one 
of  its  judges  from  day  to  day,  until  a  sufficient  number  to  try 
causes  be  collected  ;  and  if  neither  of  the  judges  be  present  on 
the  day  fixed  by  law  for  the  commencement  of  the  term,  the 
clerk  may  adjourn  it  in  hke  manner. 

Art.  881. — The  judges  of  the  supreme  court  may  be  chal- 
lenged in  the  same  manner,  and  for  the  same  causes,  as  the 
judges  of  original  jurisdiction  ;  they  must  conform  to  all  the 
rules  of  procedure  established  above,  and  which  are  applicable 
to  them  in  every  thing  not  otherwise  provided  for  under  the 
present  title,  or  which  may  hereafter  be  provided  for  by  law. 

Art.  882. — The  mode  for  obtaining  an  appeal  to  the 
supreme  court,  and  the  effect  of  such  appeal,  are  established 
by  the  general  rules  in  matters  of  appeal,  contained  in  the 
second  section  of  the  sixth  chapter  of  the  preceding  title. 

Art.  883. — If  the  appellant  has  not  filed  in  the  supreme 
court,  on  the  day  appointed  by  the  inferior  judge,  the  record 
from  the  court  below,  and  was  prevented  from  doing  so  by  any 
event  not  under  his  control,  he  may,  either  in  person  or  by 
attorney,  apply  to  the  court  before  the  expiration  of  the  three 
days,  after  which  the  appellee  may  obtain  a  certificate  from 
the  clerk,  declaring  that  the  record  has  not  been  filed,  and 
may  demand  a  further  time  to  bring  it  up,  which  may  be 
granted  by  the  court,  if  the  event  causing  its  delay  be  proved 
to  its  satisfaction  ;  the  court  may  even  grant  an  injunction  to 
the  appellant  during  the  further  time  allowed,  to  suspend  the 


OF  PROCEEDINGS  IN  THE  SUPREME  COURT.      307 

execution  on  the  judgment  appealed  from,  if  at  the  time  of 
petitioning  for  such  further  delay,  the  appellee  has  already 
required  of  the  clerk  the  certificate  necessarj'^  for  the  pursuit 
of  such  execution. 

10  K.  419 ;  3  A.  189 ;  soe  589 ;  see  5  N.  S.  192;  8  N.  S.  697 ;  3  L.  257  ;  7  L. 
350 ;  8  L.  206. 

Art.  884. — But  if  the  appellant  has  not  obtained  a  fur- 
ther delay,  and  has  not  filed  in  the  supreme  court  a  copy  of 
the  record  on  the  day  directed  by  the  court  below,  the  appel- 
lee may  cither  proceed  with  the  execution  on  the  judgment 
appealed  from,  or  he  may  bring  up  a  copy  of  the  record  him- 
self, and  have  judgment  on  the  appeal,  in  the  manner  pro- 
vided in  the  second  section,  sixth  chapter  of  the  present  title. 

8  L.  217  ;  3  A.  189  ;  see  588,  590. 

Art,  8S5. — The  appellee  shall  have  the  same  right  in  case 
the  appellant  has  obtained  further  time  to  bring  up  the  re- 
cord, and  has  failed  to  do  so  within  the  time, 

3  A.  189. 

Art,  886. — If  a  copy  of  the  record  in  the  lower  court,  and 

the  papers  belonging  to  it,  have  been  filed  in  the  supreme 

,  court,  the  appellee  shall,  within  three  days  of  the  time  allowed 

him  for  appearance  by  the  citation  of  appeal,  file  with  the 

clerk  his  answer  in  writing  to  such  appeal. 

9  R.  155  ;  see  891. 

Art.  887. — The  appellee,  in  his  answer,  may  cither  pray 
for  a  simple  confirmation  of  the  judgment  with  costs,  or  he 
may  pray  also  for  the  damages  spoken  of  hereafter. 

See  6  L.  526  ;  see  890,  907. 

Art.  888. — If  the  appellee  has  cause  to  complain  of  the 
judgment  appealed  from,  he  may,  without  appeal  on  his  part, 
state  in  his  answer  the  points  on  which  he  thinks  he  has  sus- 
tained wrong,  and  may  pray  that  the  judgment  be  reversed 
with  respect  to  them,  and  confirmed  with  costs  on  the  rest. 

15  L.  352 ;  6  R.  51 ;  9  R.  155  ;  1  A.  340 ;  2  A.  546  ;  3  A.  37,  222  ;  5  A.  38. 
140,  683  ;  see  592. 

Art,  889. — But  if  the  appellee,  on   the  appeal  of  the 


308      OF  PROCEEDINGS  IN  THE  SUPREME  COURT. 

other  party,  neglect  to  pray  that  the  judgment  be  reversed  ot 
those  points  which  are  prejudicial  to  him,  he  shall  not  after- 
wards be  allowed  to  appeal,  but  the  judgment  shall  remain  1 
irrevocable  for  or  against  him. 

6  K.  51  ;  see  3  L.  377. 

Art.  890. — If  the  appellee  neglect  to  answer  to  the  appeal 
within  the  time  allowed  him,  the  appellant  may  have  the 
cause  set  down  for  argument,  but  the  appellee  shall  be  allowed 
to  file  his  answer  until  the  day  of  argument,  if  he  only  prays 
for  confirmation  of  the  judgment  "with  costs,  but  if  he  demand 
the  reversal  of  any  part,  or  damages  against  the  appellant,  he 
shall  file  his  answer  at  least  three  days  before  that  fixed  for 
the  argument,  otherwise  it  shall  not  be  received. 

1  N.  S.  265,  2vl ;  2  L.  301 ;  3  L.  54,  434;  7  L.  59;  8  L.  217  ;  9  L.  71 ;  14 
L.  129,  288;  1  R.  18;  6  R.  494;  9  R.  256;  1  A.  35;  3  A.  186,  198,  222,  380, 
444. 

Art.  891. — But  if  the  cause  be  argued  without  the  appel- 
lee having  filed  his  answer,  and  without  any  objection  being 
made  on  that  head,  the  judgment  pronounced  shall  not  be  the 
less  vahd  for  such  omission. 

Art.  892. — When  a  cause  has  been  fixed  for  argument,  if 
the  appellee,  or  his  attorney  does  not  appear,  the  court  shall 
proceed  to  the  hearing,  if  the  appellant  require  it. 

So  if  the  appellant  does  not  appear,  the  appellee  may  ar- 
gue the  cause,  but  in  either  case  the  court  shaU  examine  the 
record,  and  render  judgment  for  one  of  the  parties  as  the  na- 
ture of  the  proofs  and  the  justice  of  the  case  shall  seem  to 
require. 

Art.  893. — If,  however,  before  the  judgment  becomes  de- 
finitive within  the  time  hereafter  prescribed,  the  party  who  did 
not  appear  on  the  day  fixed  for  the  argument,  shall  prove  that 
he  was  prevented  by  an  unavoidable  accident,  the  court  may 
grant  him  a  new  hearing  of  the  cause,  and  after  argument, 
may  reverse  the  judgment,  if  there  be  grounds  for  it. 

See  911. 

Art.  894. — The  supreme  court  shall  receive  no  new  evi- 


OF   PROCEEDINGS    IN    THE    SUPREME    COURT.  309 

dence,  even  though  it  may  have  been  discovered  since  the 
judgment  below,  but  shall  i)ronounce  on  the  case,  on  the  same 
evidence  as  was  adduced  below,  except  in  the  cases  hereafter 
expressed. 

Art.  895. — The  supreme  court  can  only  exercise  its  juris- 
diction in  so  far  as  it  shall  have  knowledge  of  the  matters  ar- 
gued or  contested  below. 

4K  S.  364;  8  N.  S.  435,453;   1  L.  323;  3  L.  616;  6  L.  402;  3  R.  236; 
6  R.  83 ;  5  A.  40. 

Art.  896. — If  therefore  the  copy  of  the  record  brought  up 
be  not  duly  certified  by  the  clerk  of  the  lower  court,  as  con- 
taining all  the  testimony  adduced,  the  supreme  court  can  only 
judge  of  such  cause  on  a  statement  of  facts,  prepared  and 
signed  in  the  manner  directed  in  the  second  section  of  the 
sixth  chapter  of  the  preceding  title,  or  on  a  written  exception 
to  the  opinion  of  the  judge,  or  on  a  special  verdict,  and  in  the 
absence  of  all  these,  it  shall  reject  the  appeal  with  costs  ;  but 
this  is  to  be  understood  with  such  modifications  as  are  con- 
tained in  the  following  articles, 

5  N.  S.  84,  89,  104,  409 ;  3  L.  446,  454,  481 ;  4  L.  41 ;  6  L.  166,  211,  303;  8  L. 
518;  11  L.  571;  4  R.  147,  443;  5  R.  169;  12  R.  456,461  ;  2  A.  II,  220. 

Art.  897. — The  appellant  who  does  not  rely,  wholly  or  in 
part  on  a  statement  of  facts,  an  exception  to  the  judge's 
opinion,  or  special  verdict,  to  sustain  his  appeal,  but  on  an 
error  of  law  appearing  on  the  face  of  the  record,  shall  be  al- 
lowed to  allege  such  error,  if  within  ten  days  after  the  record 
is  brought  up,  he  files  in  the  supreme  court  a  written  paper, 
stating  specially  such  errors  as  he  alleges  ;  otherwise  his  ap- 
peal shall  be  rejected. 

4  N.  S.  497  ;  5  N.  S.  85,  341 ;  6  N.  S.  638  ;  7  N.  S.  234 ;  1  L.  52 ;  2  L.  225 ; 
6L.  72,  144,  156,  209;  9  L.  276,  325;  10  L.  154,  555;  11  L.  92. 

Art.  898. — If,  at  the  time  of  argument,  or  before  the  ap- 
pellant perceives  that  the  copy  of  the  record  is  incomplete, 
either  through  mistakes  or  omissions,  or  from  the  clerk  ha\-iug 
failed  to  certify  the  copy,  as  containing  all  the  testimony  pro- 
duced in  the  cause,  or  from  any  similar  irregularities  not  aris- 


310  OF    PROCEEDINGS    IN    THE    SUPREME    CODRT. 

ing  from  any  act  of  the  appellant,  the  court  may  grant  him  a 
reasonable  time  to  correct  such  errors  or  omissions,  during 
which  time  judgment  on  the  appeal  shall  be  suspended. 

Stat.  20th  March,  1839,  p.  170.— §  19.  Hereafter,  no 
appeal  to  the  supreme  court  shall  be  dismissed  on  account  of 
any  defect,  error,  or  irregularity  in  the  petition  or  order  of  ap- 
peal, or  in  the  certificate  of  the  clerk  or  judge,  or  in  the  cita- 
tion of  appeal  or  servdce  thereof,  or  because  the  appeal  was  not 
made  returnable  at  the  next  term  of  the  suj)reme  court,  when- 
ever it  shall  not  appear  that  such  defect,  error,  or  in-egularity 
is  imputable  to  the  appellant,  but  in  all  such  cases  the  court 
shall  grant  a  reasonable  time  to  correct  such  errors  or  irregu- 
larities (in  case  they  are  not  waived  by  the  appellee)  and  may 
impose  on  the  appellant  such  terms  and  conditions  as  in  their 
discretion  they  may  deem  necessary  for  the  attainment  of  jus- 
tice— and  may  also  impose  such  fines  on  the  officer  who  shall 
have  caused  such  irregularities  as  they  may  deem  proportioned 
to  the  offences. 

3  L.  294,  296;  5  L.  321;  4  L.  472;  9  L.  119;  12  L.  437,  537;  5  R.  153. 

Art.  899. — If  the  record  be  incom2)lete,  because  the  judge 
below  refused  to  perform  any  of  his  duties,  such  as  to  sign  the 
exceptions  to  his  opinion,  or  if  such  imperfection  proceed  fi-om 
a  similar  refusal  by  the  clerk,  the  suj)reme  court  shall  direct  a 
mandate  to  such  judge  or  clerk,  ordering  him  to  perform  the 
duty  imposed  on  him  by  law  or  by  the  nature  of  his  office, 
and  in  the  mean  time  it  shall  suspend  its  judgment  on  the  ap- 
peal. 

5  N.  S.  90 ;  see  857. 

Art.  900. — When  a  party  desiring  to  appeal  from  the 
judgment  of  the  lower  court,  cannot  obtain  a  statement  of  facts 
from  the  judge,  or  his  signature  to  exceptions  from  his  opinion, 
upon  motion  the  supreme  court  shaU  direct  a  mandate  order- 
ing him  to  perform  his  duty,  provided  said  motion  be  made, 
on  the  first  day  of  the  term  succeeding  the  refusal  of  the 
judge. 

12  L.  437. 


OF    PROCI/EDINGS    IN    THE    SUPREME    COtTRT.  311 

Art.  901. — When  the  supreme  court  once  has  jurisdiction 
of  an  appeal,  wliether  by  the  transmission  of  the  record,  or  by 
that  of  the  citation  served  on  the  appellee,  it  cannot,  in  any 
case,  permit  the  appellant  to  withdraw  his  appeal,  without  the 
consent  of  the  appellee,  and  the  cause  shall  take  its  course, 
whether  the  appellant  make  default  or  not. 

Art.  902. — Although  in  general,  parties  before  the  su- 
preme court  are  not  allowed  to  plead  other  matters  than  those 
which  were  before  the  inferior  court,  nevertheless  it  may  depart 
from  this  rule,  when  the  exception  taken  is  one  of  those  which 
may  be  pleaded  at  any  period  of  a  cause,  and  the  proof  of  it 
appears  by  the  mere  examination  of  the  record. 

Thus  prescription  may  be  pleaded  before  the  supreme  court, 
when  the  proof  of  it  appears  on  the  face  of  the  proceedings  in 
the  lower  court.  But  the  party  to  whom  it  is  opposed  shall 
have  the  privilege  of  demanding  ^hat  the  cause  be  remanded 
for  trial  upon  that  plea. 

3  R.  236 ;  5  R.  83 ;  9  R.  98,  518 ;  1 2  R.  540  ;  1  A.  246 ;  2  A.  780. 

Art.  903. — When  the  defendant,  in  a  case  brought  by  ap- 
peal before  the  supreme  court,  dies  during  the  continuance  of 
the  suit,  his  heir  may  be  made  a  party  in  liis  place. 

Art.  904. — A  creditor  of  a  party  to  a  suit,  who  has  not 
proved  his  debt  in  the  lower  court,  cannot  exercise  his  debtor's 
right  of  appeal. 

7  N.  S.  313,  346,641 ;  C.  C.  1986. 

Art.  905. — When  the  supreme  court  reverses  the  judg- 
ment of  an  inferior  court,  it  shall  pronounce  on  the  case  the 
judgment  which  the  lower  court  should  have  rendered,  if  it  be 
in  possession  of  all  the  facts  and  testimony  to  enable  it  to  pro- 
nounce definitively. 

11  L.  368;  3  R.  349;  9  R.  267;  3  A.  37. 

Art.  906. — But  if  the  court  shall  think  it  not  possible  to 
pronounce  definitively  on  the  cause,  in  the  state  in  which  it 
is,  either  because  the  parties  have  failed  to  adduce  the  neces- 
Bary  testimony,  or  because  the  inferior  court  refused  to  receive 


312      OF  PROCEEDINGS  IN  THE  SUPREME  COURT. 

it,  or  otherwise,  it  may  according  to  circumstances,  remand 
the  cause  to  the  lower  court,  with  instructions  as  to  the  testi- 
mony which  it  shall  receive,  to  the  end  that  it  may  decide  ac- 
cording to  law. 

8  M.  170,  235 ;  10  M.  69  ;  11  M.  202,  205  ;  12  M.  355  ;  6  N.  S.  003.  C35,  647  ; 
3  L.  341 ;  6  L.  81 ;  7  L.  69  ;  10  L.  246;  12  L.  381,  413,  673 ;  13  L.  186,  344; 

15  L.  231  ;  16  L.  477  ;  18  L.  318;  19  L.  418,  517;  2  R.  491;  8  R.  19,  119;  9  R. 
168,  387,  394;  11  R.  13,  32;  12R.  95;1  A.  118;  2  A.  276,  846;  5  A.  183,  540,596. 

Art.  907. — The  court  in  confirming  a  judgment  appealed 
from  shall  condemn  the  appellant  to  pay  all  the  costs.  It  may 
even  condemn  hun  to  pay  to  the  appellee,  if  the  latter  claims 
it  by  his  answer,  such  damages  as  it  may  think  equivalent  to 
the  loss  which  he  has  sustained  by  the  delay  consequent  on  the 
appeal,  provided  the  amount  of  such  damages  does  not  exceed 
ten  per  cent,  on  the  value  of  the  amount  in  dispute, 

3  M.  405  ;  8  M.  164 ;  10  M.  201 ;  12  M.  395,  491,  492  ;  3  N.  S.  248,  256,  257 ; 
5  N.  S.  106,  152 ;  7  N.  a  608 ;  8  N.  ^  253,  500 ;  6  L.  230,  523,  640  ;  7  L.  167,  571 ; 
8  L,  180,  550;  9  L.  415;  11  L.  268;  12  L.  11,422;  13  L.  291,494,592;  14  L. 
261,  263,  264,  324,  325,  326,  347,  361,  427,  435,  448,  466  ;  16  L.  17,  18,  19,  20,  23, 
24,  25,  27,  31,  32,  37,  217,  222,  232,  255,  288,  418,  435,  440,  442,  443,  444,  445 ; 

16  L.  248,  250,263,269,  565;  17  L.  69,520,  584;  18  L.  36,  680,  582,584; 
19  L.  345. 

Art.  908. — If  the  judgment  be  reversed,  in  whatever  de- 
gree it  may  be,  the  appellee  shall  pay  the  costs. 

7  L.  570. 

Art.  909. — The  supreme  court  shall  state  the  reasons  of 
its  judgments,  by  citing,  as  exactly  as  possible,  the  laws  on 
which  it  founds  its  opinion.  When  the  judges  arc  all  of  the 
same  opinion,  it  shall  be  sufficient  that  one  of  the  number 
pronounce  the  judgment,  but  if  there  be  a  division  between 
them  they  shall  declare  their  oi)inions  separately. 

Sec  4  L.  173. 

Art.  910. — All  the  judgments  or  orders  rendered  by  the 
supreme  court  shall  be  recorded  at  length  by  the  clerk,  in  re- 
cords kept  for  that  purpose. 

Art.  911. — Tlie  judgments  rendered  by  the  supreme  court 
shall  be  final,  and  the  clerk  shall  deliver  a  copy  to  every  per- 


OF    PROCEEDINGS   IN    THE    SUPREME    COURT.  313 

son  requiring  it,  after  three  judicial  days  shall  have  elapsed 
from  the  rendering  of  the  judgment. 

5  N.  S.  408  ;  10  L.  374;  8  R.  500. 

Art.  912.— In  the  interval  between  the  day  on  which  the 
judgment  is  rendered,  and  that  on  which  it  becomes  final,  a 
party  dissatisfied  with  the  judgment,  may  apply  to  the  court 
for  a  new  hearing  in  the  cause,  and  for  this  purpose  shall  pre- 
sent a  petition,  in  which  he  shall  state  substantially  the  rea- 
sons for  which  he  thinks  the  judgment  erroneous,  and  shall  cite 
the  authorities  in  support  of  his  opinion. 

Art.  913. — The  court  shall  consider  of  the  reasons  addu- 
ced in  such  petition,  without  argument,  and  if  it  grants  a  new 
hearing  of  the  cause,  shall  state  the  points  on  which  it  Avishes 
to  hear  the  parties  anew. 

While  the  court  is  deliberating  on  this  application,  the 
three  days  allowed  for  rendering  a  judgment  final,  do  not  run. 

Art.  914. — If  the  court  refuses  a  new  hearing,  it  sliall  de- 
clare its  opinion,  without  being  obHged  to  state  the  reasons 
for  it. 

Art.  915. — No  execution  shall  issue  on  the  judgments  of 
the  supreme  court,  but  such  judgments,  whether  confirming  or 
reversing  those  appealed  from,  shall  be  sent  back  for  tlieir'ex- 
ecution  to  the  inferior  court,  and  no  mandate  need  be  directed 
to  the  latter  for  that  purpose. 

Art.  916.— Precedence  shall  be  determined  among  the 
judges  of  the  supreme  court,  by  the  date  of  their  coimuis'^ions, 
and  if  their  commissions  are  of  the  same  date,  the  oldest  indi- 
vidual shall  take  precedence. 

Art.  917.— The  supreme  court  may,  when  required  by  one 
of  the  parties,  direct  orders  to  public  ofticers  or  individuals,  to 
produce  before  it  any  title  deeds,  papers  or  documents  relating 
to  suits  which  are  in  their  possession,  or  if  which  they  are  de- 
positaries, when  the  said  documents  may  be  necessary  to  the 
decision  of  a  cause  pending  before  it. 

Art.  918. — But  the  supreme  court  can  only  exercise  this 
power,  with  regard  to  the  documents  belonging  to  a  public 


314     OF  PROCEEDINGS  IN  THE  SUPREME  COURT. 

office,  when  such  office  is  kept  in  the  place  where  it  holds  its 
sittings,  otherwise  the  parties  must  produce  properly  certified 
copies  of  the  papers  belonging  to  such  suits,  which  have  been 
adduced  in  the  lower  court. 

This  rule  shall  be  common  to  all  the  tribunals  of  the  State. 

Art.  910. — Whenever  any  title  deed  or  document  relating 
to  a  suit  shall  be  produced  by  a  public  officer,  or  other  indi- 
vidual, by  order  of  the  supreme  court,  it  shall  be  delivered  to 
the  clerk  of  the  court,  who  shall  give  a  receipt  for  it,  and  when 
the  cause  is  determined,  it  shall  bo  the  duty  of  the  clerk  to  re- 
turn such  document  to  the  pubUc  officer,  or  other  individual, 
from  whom  he  received  it,  and  not  to  retain  it  under  any  pre- 
text. 

Art.  920. — It  is  the  duty  of  the  sheriffs  of  the  dififerent 
parishes  where  the  supreme  court  is  in  session,  to  attend  its 
sittings,  or  to  send  one  of  their  deputies  ;  and  a  compensation 
is  granted  to  such  sherifts,  of  two  dollars  for  each  day  they  or 
their  deputies  shall  be  thus  employed,  wliich  sum  shall  be  paid 
to  them  out  of  the  treasury  of  the  State,  on  the  wan-ant  of  one 
of  the  judges  of  the  supreme  court. 


OF    COURTS    OF    PROBATE,  315 


TITLE  III. 

OF  THE  PKOCEEDINGS  IN  COURTS  OF  PROBATE. 


CHAPTER  I. 

OF   COURTS   OF    PROBATE   AND   OF   THEIR   JURISDICTION. 

Art,  921. — Courts  of  probate  arc  especially  established  to 
appoint  legal  representatives  for  minors,  orj^hans,  insane  and 
absent  persons,  and  to  superintend  the  atlministratioii  of  vacant 
successions. 

Const.  1845,  arts.  62,  "78  ;  Const.  1852,  art.  61. 

Art.  922. — They  are  called  courts  of  probate,  because  the 
proving  and  recording  of  last  wilk  and  testaments  are  made 
before  them. 

Art.  923. — The  parish  judges  are  ex  officio  judges  of  the 
courts  of  probate,  in  their  respective  parishes. 

Art,  924. — Courts  of  probate  have  the  exclusive  power  : 

1.  To  open  and  receive  the  proofs  of  last  wills  and  testa- 
ments, and  to  order  the  execution  and  recording  of  them. 

2.  To  appoint  tutors  and  curators  for  minors,  interdicted  and 
absent  persons  who  have  no  representatives  in  the  State,  and 
for  such  persons  as  are  capable  of  administering  their  own 
property. 

3.  To  confirm  or  reject  such  tutors  of  minors  as  may  have 
been  appointed  by  the  last  will  of  their  father  or  mother. 

4.  To  appoint  curators  to  vacant  estates  and  absent  heirs. 

5.  To  make  the  inventories  and  sale  of  the  property  of  suc- 
cessions, which  are  administered  by  curators,  or  testamentary 


316  OF    COURTS    OF    PROBATE. 

executors,  or  in  which  the  heir  prays  for  the  benefit  of  in- 
ventory ; 

6.  To  homologate  wills  in  which  one  or  more  testamentary 
executors  are  appointed,  and  to  issue  letters  of  administration 
to  such  executors  ; 

7.  To  appoint  administrators  under  the  will,  when  the  ex- 
ecutor appointed  by  the  testator,  will  not,  or  cannot  perform 
the  duties,  or  is  dead  or  absent ; 

8.  To  remove  or  supply  the  places  of  such  tutors,  curators, 
and  testamentary  executors,  in  the  cases  provided  by  law  ; 

9.  To  compel  such  administrators  to  render  an  account, 
when  required,  or  at  the  period  fixed  by  law  ; 

10.  To  interdict  persons  who  fall  into  a  state  of  madness, 
and  to  restore  them  to  the  enjoyment  of  their  rights  when  they 
regain  their  reason  ; 

11.  To  compel  such  heirs  as  have  taken  time  to  deliberate, 
to  declare,  when  required  by  the  creditors  of  the  deceased, 
whether  they  accept  or  renounce  a  succession  ; 

12.  To  decide  on  the  putting  in  provisional  possession  of 
the  heirs  of  absentees  ; 

13.  To  decide  on  claims  for  money  which  are  brought 
against  successions  administered  by  curators,  testamentary  ex- 
ecutors, or  administrators  of  successions,  and  to  establish  the 
order  of  privileges  and  mode  of  payment  ; 

14.  To  ordain  and  regulate  all  partitions  of  successions  in 
which  minors,  interdicted  or  absent  jiersons  arc  interested,  or 
even  those  which  are  made  by  autliority  of  law,  between 
persons  of  lawful  age,  and  residing  in  the  State,  when  such 
persons  cannot  agree  upon  the  partition  and  the  mode  of 
making  it. 

Stat  I6th  March,  1842,  p.  300.— §  1.  The  succession  of 
persons  domiciliated  out  of  the  State  of  Louisiana,  and  leaving 
in  this  State,  at  their  demise,  movable  or  immovable  pro- 
perty, or  both,  shall  be  opened  and  administered  upon  as  are 
those  of  the  citizens  and  inhabitants  of  the  State  ;  and  the 
judge  before  whom  such  successions   shall  be   opened  shaU 


OF    COURTS   OF   PROBATE.  317 

proceed  to  the  appointment  or  confirmation  of  the  officer  to 
administer  it,  under  the  name,  and  in  the  manner  pointed 
out  by  tlie  existing  hiws,  under  the  separate  sections  of  the 
code  which  treat  of  successions  generally. 

§  2.  In  testamentary  successions,  wlienever  the  executor 
or  executors  named  by  tlie  testator  will  not  perform  the  duties, 
or  may  be  dead  or  absent,  the  judge  shall  appoint  one  or  more 
dative  testamentary  executors,  as  it  is  iirovided  by  the  924th 
article  No.  7  of  the  Code  of  Practice,  and  in  the  same  manner 
as  if  the  testator  had  omitted  to  name  his  executor. 

§  3.  Whenever  the  testamentary  executor  named  in  the 
will  shall  be  present  in  the  State,  but  be  domiciled  out  of  it, 
the  judge  shall  only  grant  him  the  letters  on  the  execution  of 
his  bond,  with  a  good  and  solvent  security,  for  such  a  sum  and 
under  such  conditions  as  are  required  by  law  from  dative  tes- 
tamentary executors. 

§  5.  Whenever  the  testamentary  executor  or  any  othet 
administrator  of  a  succession  shall  sufifer  his  ten  days  to 
elapse  after  his  confirmation  or  appointment,  without  hav- 
ing either  qualified  or  caused  an  inventory  to  be  at  least 
begun,  the  judge  shall  forthwith  and  ex  officio  appoint  a 
successor  in  office,  as  if  no  such  officer  had  been  confirmed  or 
appointed.  ** 

§  6.  The  courts  of  probates  shall  have  exclusive  cognizance 
of  all  suits  or  actions  against  sureties  on  the  bonds  of  appeal, 
and  all  others  which  they  arc  bound  by  law  to  receive  or  exact 
from  appellants  and  administrators,  tutors,  curators,  and  tes- 
tamentary executors  generally  ;  and  no  such  suit  shall  be 
instituted  against  the  security  until  the  necessary  steps  have 
been  taken  to  enforce  payment  against  the  principal. 

See  (under  clerks)  Stat  29th  M-iy,  1846,  p.  63,  §  1,  2,  4,  5,  6, 7,  9;  Stat.  16th 
March,  1850,  §  1,  2,  3,  4, ;  Siat.  18(h  March-,  1852,  p.  206,  §  1,  2,  3. 

Stat,  llth  February,  1834,  p.  54. — §  1.  In  all  cases  where 
oaths  are  required  by  law  to  be  taken  in  courts  of  probates, 
the  same  may  be  administered  by  the  judge,  the  clerk  of  tho 
court  of  probates,  or  his  deputy  clerks,  and  in  the  parish  of 


318  OF    COURTS    OF    TROBATE. 

Orleans,  by  the  judge  of  the  court  of  probates,  or  by  the  regis- 
ter of  wills,  or  any  of  his  deputies  ;  and  all  oaths  of  tutors, 
curators,  appraisers,  and  other  oaths  of  office  required  by  law, 
shall  be  recorded  in  a  bound  book  kept  for  that  purpose. 

§  2.  In  the  parish  of  Orleans  it  shall  suffice,  in  all  cases, 
and  to  all  legal  intents  and  purposes,  that  the  public  notices 
and  advertisements  which  the  law  requires  to  be  given  by  the 
court  of  probates  be  published  in  both  languages,  French  and 
English,  in  two  of  the  newspapers  printed  in  New  Orleans,  all 
laws  to  the  contrary  notwithstanding. 

§  3.  It  shall  be  the  duty  of  said  clerks  of  courts  of  probates, 
and  of  the  register  of  wills,  of  the  parish  of  Orleans,  to  record 
in  a  bound  book  all  bonds,  particularly  those  given  by  tutors, 
administrators  of  successions,  and  curators  ;  and  for  such  re- 
cording of  any  bond  there  shall  be  allowed  fifty  cents. 

S(af.  27ih  March,  1840,  p.  111.— §  1.  In  all  successions,  the 
property  belonging  to  which  is  situated  at  the  Cheniere  Cami- 
nada,  Grande  Isle,  in  the  parish  of  Jefferson,  and  the  value 
of  which  does  not  exceed  fifteen  hundred  dollars,  any  justice  of 
the  peace  of  that  2)lace  shall  have  the  same  powers  that  are 
granted  to  the  parish  judge  of  the  parish  of  Jefterson,  ex  officio 
judge  of  the  court  of  probates  for  the  settlement  of  said  suc- 
cessions, and  shall  be  entitled  to  the  same  emoluments  for  his 
services  that  the  judge  of  the  parish  of  Jefterson  is  entitled  to, 
under  the  tariff,  while  acting  ex  officio  judge  of  the  court  of 
probates. 

§  2.  The  said  justice  of  the  peace  may  bo  commissioned  by 
any  judge  of  the  court  of  probates,  parish  or  district  judge,  in 
this  State,  to  take  the  inventory  of  property  situated  at  Che- 
niere Caminada,  belonging  to  successions  opened  in  the  parish 
of  Jefferson  or  any  other  parish  in  this  State. 

§  3.  In  all  successions  opened  in  the  parish  of  Jefferson, 
the  said  justice  of  the  peace  shall  transmit  to  the  office  of  the 
parish  judge  of  said  parish  certified  copies  of  all  acts  of  pro- 
cedure done  by  him,  imder  the  authority  of  this  act,  within  a 
period  not  to  exceed  ninety  days. 


MODE    OF    PROCEEDING    IN    CERTAIN    ACTIONS.  319 

§  4.  All  acts  or  parts  of  acts  contrary  to  the  provisions  of 
this  act  be,  and  they  are  hereby  repealed. 

6  L.  26,  395 ;  12  L.  72 ;  15  L.  36,  358 ;  17  L.  4  ;  3  R.  92,  99 ;  4  R.  20,  412  ;  5  R.  2; 
6  R.  44;  7  R.  183,  206;  11  R.  77,  209;  12  R.  536;  1  A.  173. 

Art.  925. — The  courts  of  probates  shall  have  no  jurisdic- 
tion except  in  the  cases  enumerated  in  the  preceding  article, 
or  in  those  which  shall  be  mentioned  in  the  remaining  part  of 
this  title. 

SR.  92,  99;  4  R.  20,  412;  5  R.  2;  7  R.  183. 


CHAPTER  II. 

OF    THE   MODE    OF    PROCEEDING    IN    COURTS   OF    PROBATE. 

Art.  926. — Courts  of  probate  have  two  modes  of  proceed- 
ing, the  one  by  summary,  and  the  other  by  the  ordinary 
process. 

Art.  927. — The  rules  relative  to  proceedings  in  courts  of 
probate  differ  according  to  the  various  matters  of  which  they 
have  cognizance,  and  of  which  we  shall  treat  in  the  following 
sections. 

Sec  I. — Of  the  mode  of  proceeding  in  certain  actions. 

§  1.  Of  the  opening  and  jyroving  of  wills. 

Art.  928. — When  a  testator  is  dead,  his  testamentary  exe- 
cutor or  any  other  person  who  may  feel  an  interest  in  having 
his  will  executed,  shall  present  a  petition  for  that  purpose  to 
the  judge  of  probates  of  the  place  where  the  succession  is 
opened. 

8  L.  87  ;  9  L.  526  ;  C.  C.  1637. 

Art.  929. — The  place  in  which  a  succession  is  opened,  is, 
and  in  future  shall  be  held  to  be,  as  follows,  notwithstanding 
any  former  law  to  the  contrar}'. 

In  the  parish  where  the  deceased  resided,  if  he  had  a  domi- 
cil  or  fixed  place  of  residence  in  the  State  ; 


320  OF    THE   MODE   OF   PROCEEDINQ 

In  the  parish  where  he  left  landed  property,  if  he  had  nei- 
ther domicil  nor  })lacc  of  residence  in  the  State  ;  or  in  the  pa- 
rish in  which  it  appears  from  the  inventory  that  his  principal 
property  was  situated,  if  he  had  property  in  several  parishes  ; 

In  the  parish  where  he  died,  if  he  had  no  certain  or  any 
fixed  property. 

7  X.  S.  52  ;  C.  C.  929. 

Art.  930. — If  the  will  be  made  by  a  public  act,  it  shall  be 
sufficient  for  tlie  petitioner  to  annex  a  copy  of  it  in  due  form 
to  his  petition,  and  to  pray  for  the  execution  and  recording 
of  it. 

Art.  931. — If  it  be  the  executor  appointed  by  the  will  who 
presents  the  petition,  he  shall  demand  not  only  the  execution 
and  registry  of  the  will,  but  that  letters  testamentary  be  de- 
livered to  him,  if  he  agrees  to  accept  the  appointment. 

Stat.  16th  March,  1842.— p.  302.  §  4.— Whenever  the 
testamentary  excutors  named  in  the  will  shall  present  a  pe- 
tition praying  for  the  execution  and  registry  of  the  wiU,  and 
should  fail  to  pray  besides  for  tlie  letters  testamentary,  in 
conformity  with  the  931st  article  of  the  Code  of  Practice, 
then  and  in  that  case  he  shall  be  presumed  to  have  declined 
the  trust. 

6  N.  S.  402  ;  7  L.  32. 

Art.  932. — The  judge  shall  only  order  the  execution  and 
registry  of  the  will,  when  satisfied  that  the  testator  is  actually 
dead. 

C.  C.  1C39. 

Art.  933. — When  the  will  has  been  made  in  the  presence 
of  witnesses,  the  judge,  after  being  satisfied  of  the  testator's 
death  shall  order  that  the  will  be  i)roved  before  him  on  a  day, 
place  and  hour  to  be  fixed  by  liim,  by  the  number  of  witnesses 
required  for  the  purpose  by  law. 

6  L.  725  ;  7  L.  45  ;  9  L.  470  ;  10  L.  328,  533  ;   C.  C.  1C71. 

Art.  934. — If  the  wiUbe  contained  in  a  sealed  packet,  the 


IN    CERTAIN    ACTIONS.  321 

judge  shall  order  the  opening  of  it  at  the  time  appointed  by 
him,  and  shall  then  proceed  to  the  proof  of  the  will. 

10  K  328. 

Art.  935. — The  party  praying  for  the  opening  and  proof  of 
the  will,  shall  cause  to  fee  summoned  the  number  of  witnesses 
possessing  the  qualities  required  for  such  proof,  and  if  the  pre- 
sumptive heirs  of  the  deceased  or  any  of  them,  reside  in  the 
place,  he  shall  give  them  notice  in  writing,  that  they  may 
attend,  if  they  think  proper,  at  the  oj^ening  and  proof  of  the 
will. 

Art.  936. — If  the  petitioner  alleges  under  oath  in  his  peti- 
tion that  he  is  informed  that  the  will  of  the  deceased,  the 
opening  of  which  and  its  proof  and  execution  are  prayed  for, 
is  deposited  in  the  hands  of  a  notary  or  any  other  person,  the 
judge  shall  issue  an  order  to  such  notary  or  other  person, 
directing  him  to  produce  the  will  or  the  packet  containing  it, 
at  a  certain  time  to  be  mentioned,  that  it  may  be  opened  and 
proved,  or  that  the  execution  of  it  may  be  ordered. 

Art.  937. — If  the  notary,  or  other  individual  to  whom  the 
said  order  is  directed,  refuses  to  obey  it,  the  judge  shall  issue 
an  order  to  arrest  him,  and  if  he  does  not  adduce  good  reasons 
for  not  producing  the  wdU,  shall  commit  him  to  prison  until  he 
produces  it,  and  he  shall  be  answerable  in  damages  to  such 
persons  as  may  suflfer  from  his  refusal. 

Art.  938. — At  the  time  appointed  for  opening  and  proving 
the  will,  the  judge  shall  proceed  in  this  duty  in  the  manner 
prescribed  by  law. 

Art.  939. — For  the  purpose  of  such  proof,  the  judge  shall 
receive  the  deposition  in  writing,  of  each  of  the  witnesses  pro- 
duced, which  depositions  shall  be  signed  by  them  with  their 
names  or  ordinary  marks,  and  the  whole  shall  remain  an- 
nexed to  the  record. 

Art.  940. — After  this  proof,  the  judge  shall  read  the  will  in 
an  audible  and  distinct  voice,  to  the  end  that  its  provisions 
may  be  heard  by  the  witnesses  and  all  other  persons  present, 
21 


322  OF    THE    APPOINTMENT    OF    TUTORS,    ETC. 

and  if  it  appear  to  be  in  regular  form,  the  execution  of  it  shall 
be  ordered,  and  it  shall  be  recorded. 

5  N.  S.   182  ;  9  L.  470  ;   10  L.  632. 

Art.  941. — The  judj^e  shall  also  ordain  that  the  original  of 
the  will  thus  proved  shall  be  deposited  in  his  office,  after  be- 
ing signed,  ne  varietur,  by  him,  at  the  beginning  and  end  of 
each  page. 

Art.  942. — The  judge  before  whom  a  will  shall  be  thus 
opened  and  proved,  shall  prepare  a  process  verbal,  in  which  he 
shall  recite  ; 

1.  The  manner  in  which  the  opening  and  proof  were  made  ; 

2.  The  names  and  surnames  of  the  witnesses  and  the  man- 
ner in  which  they  made  their  declarations  ; 

3.  The  reading  the  will  in  an  audible  and  distinct  voice  to 
the  witnesses  and  other  persons  present  ; 

4.  The  order  for  executing  and  recording  the  will,  and  for 
depositing  it,  after  having  signed  it,  ne  varietur,  at  the  begin- 
ning and  end  of  each  page. 

This  process  verbal  shall  be  dated  and  signed  by  the  judge 
or  clerk,  and  shall  remain  annexed  to  the  record  as  a  part 
of  it. 

Art,  943. — When  a  will  has  been  thus  proved,  the  depo- 
sitions of  witnesses  taken  in  writing  shall  be  considered  good 
evidence,  in  case  the  will  be  subsequently  attacked,  although 
Buch  witness  be  dead  or  removed  permanently  from  the  State. 


^  2.   0/"  the  Appointment  of  Tvtors  mid  Curators  of  Minors, 
Interdicted  and  Absent  Persons. 

Stat,  nth  March,  1830,  p.  48.— §  1.  From  and  after  the 
passage  of  this  act,  any  surviving  flither  or  mother  who  shall  have 
heretofore  become,  or  shall  hereafter  become  the  natural  tutor  or 
tutrix,  curator  or  curatrix  of  their  minor  child  or  cliildren,  may, 
and  they  are  hereby  permitted  to  give  a  special  mortgage  on  im- 
movable property,  not  slaves,  for  the  security  of  the  rights  and 


OF    THE    APPOINTMENT   OF    TUTORS,    ETC.  323 

property  of  their  said  children  and  the  faithful  discharge  of  their 
functions  as  tutor  or  tutrix,  curator  or  curatrix  aforesaid  :  Pro- 
vided, that  a  meeting  of  the  family  of  the  said  minor  or  minors, 
duly  called  according  to  law,  on  the  petition  of  the  said  surviving 
father  or  mother  to  that  effect,  addressed  to  the  court  of  ])robate3 
of  the  proper  parish,  shall  declare  that  the  pro^jcrty  offered  to  be 
so  specially  mortgaged  is,  in  the  opinion  of  said  family  meeting, 
of  sufficient  value  to  secure  the  rights  of  said  cliild  or  children 
in  capital  and  interest,  which  said  mortgage  shall  he  executed 
in  the  same  manner  that  mortgages  of  the  like  nature  arc  now 
executed  by  curators  ad  bona  of  minors.  And  from  and  after 
the  execution  of  the  said  special  mortgage,  by  the  said  father 
or  motlier,  natural  tutor  or  tutrix  as  aforesaid,  all  the  remain- 
ing property  of  the  said  father  or  mother  acquired  or  to  be 
acquired,  shall  be  completely  discharged  from  all  legal,  tacit, 
or  any  other  description  of  mortgages,  hypothecation,  or  lien 
whatever  arising  from  said  tutorship, 

§  2.  In  case  of  an  adjudication  made  under  the  338th 
article  of  the  Civil  Code,  or  any  other  law  authorizing  similar 
adjudications,  a  special  mortgage  may  be  given  by  the  father 
or  mother  on  real  property,  not  slaves,  to  secure  the  rights  of 
the  minors  ;  and  such  special  mortgage  shall  have  the  effect 
of  annulling  the  mortgage  arising  from  such  adjudication. 

§  3.  A  special  mortgage  given  in  favor  of  a  minor  or  minors 
may  be  changed  after  a  family  meeting,  called  and  held  accord- 
ing to  law,  shall  have  recommended  such  change,  and  after  the 
deliberations  of  said  family  meeting  shall  have  been  duly 
homologated  ;  Provided,  that  the  title  of  the  property  proposed 
to  be  mortgaged  shall  be  laid  before  the  said  family  meeting, 
and  shall  be  carefully  inspected  by  the  under  tutor  and  the 
judge  ;  and  provided  that  all  the  other  provisions  contained  in 
this  act  sliall  be  fully  complied  with. 

§  4.  In  all  cases  of  application  made  by  a  father  or  mother 

to  give  a  special  mortgage,  and  the  person  applying  shall  be 

bound  to  present  at  the  family  meeting  a  certificate  from  the 

,      register  of  mortgages,  showing  what  mortgages,  if  any,  exist  on 


324  OF    THE    ArrOINTMENT    OF    TUTORS,    ETC. 

the  property  offered  to  be  specially  mortgaged  ;  the  undei 
tutor  shall  be  called,  and  it  shall  Ixj  his  duty  to  be  present  at 
the  deliberations  of  the  family  meeting,  and  when  not  fully  sat-  ^ 
isficd  with  the  value  or  kind  of  property  offeR^d  to  be  mort- 
gaged, with  the  validity  of  the  titles  of  said  property,  or  with 
the  deliberations  of  the  family  meeting,  he  shall  refuse  liis 
approbation  to  sjvid  deliberations  ;  and  any  under  tutor  neg- 
lecting to  perform  the  duties  hereby  prescribed,  or  neglecting 
to  ascertain  the  real  value  of  the  i)roperty  offered  to  be  mort- 
gaged, shall  be  responsible  to  the  minors  for  any  loss  they  may 
experience  from  such  neglect  ;  and  it  shall  also  be  the  duty 
of  the  under  tutor,  whenever  the  value  of  the  property  sjiecially 
mortgaged  shall  have  diminished  so  as  to  endanger  the  interest 
of  the  minors,  to  require  an  additional  mortgage. 

§  5.  Whenever  an  under  tutor  shall  refuse  to  approve  of 
the  deliberations  of  a  family  meeting,  or  object  to  their  homo- 
logation, the  court  shall  decide  whether  the  0})position  is  well 
founded,  and  if  unfounded  the  opposition  shall  be  overruled, 
and  the  deliberations  homologated  as  if  no  opposition  had  taken 
place:  Provided,  that  when  the  court  shall  decide  that  the 
opposition  of  the  under  tutor  is  unfounded,  and  shall  homolo- 
gate the  deliberations  of  the  family  meeting,  the  under  tutor 
who  shall  have  made  the  opposition  shall  be  exonerated  from 
the  personal  responsibility  which  is  im2)osed  upon  him  by  the 
preceding  section. 

§  6.  All  costs  occasioned  by  the  demand  to  give  a  special 
mortgage  shall  be  paid  by  the  persons  making  the  ai)}ilication. 

§  7.  It  is  hereby  made  the  duty  of  all  public  officers  before 
whom  family  meetings  shall  be  called,  to  read  this  act  to  them 
and  to  the  under  tutors,  and  any  officer  foiling  to  perform  this 
duty  shall  be  responsible  for  any  loss  arising  from  such  neglect 
either  to  the  under  tutor  or  to  the  minor  or  minors. 

§  8.  In  all  cases  where  special  mortgages  shall  be  given  by 
curators  or  tutors  in  lieu  of  the  legal  mortgage  existing  in  such 
cases,  as  recognized  by  law,  it  shall  be  the  duty  of  the  judge 
receiving  such  special  mortgage  to  cause  the  property  proposed 


OF  THE  APPOINTMENT  OF  TUTORS,  ETC.       325 

to  be  mortgaged  to  be  appraised  by  experts,  in  the  same  man- 
ner as  is  provided  when  adjudications  of  the  property  of  minors 
are  made  to  their  surviving  father  or  mother,  and  tlie  said 
judge  shall  in  no  case  accept  the  said  mortgage  unless  the 
value  of  the  property  so  appraised  shall  exceed,  exclusive  of  all 
prior  liens,  privileges,  or  mortgages,  tlie  amount  of  the  debts 
or  rights  of  the  minors  intended  to  be  secured  by  the  said 
special  mortgage,  by  at  least  twenty-five  per  cent,  in  addition 
to  the  amount  of  the  said  debts  or  rights,  to  be  ascertained  by 
a  previous  liquidation,  to  be  made  according  to  law  in  the 
office  of  the  judge  having  jurisdiction  of  the  said  matter,  and 
including  all  interest  which  will  probably  accrue. 

§  9.  There  shall  be  hereafter  no  curator  ad  bona  or  curator 
ad  litem  appointed  in  any  case  ;  that  the  persons  and  estates 
of  minors  shall  in  all  cases  be  placed  under  the  power  of  tutors 
and  under  tutors  ;  and  that  the  powers,  duties,  and  responsi- 
bihties  of  tutors  and  under  tutors,  as  well  as  their  liability  to 
be  removed  from  office,  shall  continue  until  the  minor  or  minors 
attain  the  age  of  majority,  or  are  otherwise  emancipated: 
Provided,  that  this  section  shall  not  apply  to  cases  in  which 
curators  ad  bona  shall  have  been  appointed  before  the  promul- 
gation of  this  act. 

§  10.  The  grandfather  or  grandmother,  when  the  tutorship 
shall  have  devolved  or  may  devolve  upon  either  of  them  by 
operation  of  law,  shall  be  entitled  to  the  benefit  of  the  provi- 
sions in  favor  of  natural  tutors  or  tutrices  contained  in  the  first 
section  of  this  act. 

Art.  944. — The  appointment  of  a  tutor  or  curator  to  a 
mhior  belongs  to  the  judge  of  probates  of  the  place  of  domicil 
or  usual  residence  of  the  father  and  mother  of  such  minor,  if 
they  or  either  of  them  be  living. 

9  L.  238,671  ;  3  R.  303 ;  2  A.  71. 

Art.  945.— If  the  ftither  and  mother  of  the  minor  be  dead, 
the  appointment  shall  be  made  by  the  judge  of  probates  of 
their  last  place  of  domicil,  or  if  they  had  no  domicil,  of  that 
of  the  minor's  nearest  relations. 

7  N.  S.  388;  10  L.  97 ;  see  IIC. 


326  OF   THE    APPOINTMENT    OF    TUTORS,    ETC. 

Art.  946. — If  the  father  and  mother  of  the  minor  reside 
out  of  the  State,  and  are  not  represented  in  it,  and  the  minor 
be  also  absent,  he  may  he  jirovided  witli  a  tutor  or  curator  by 
the  judj^e  of  probates  of  the  place  whore  his  principal  proper 
ty  is,  or  where  he  has  interests  to  assert  or  defend. 

7  L.  544,  547  ;  2  A.  71 ;  C.  C.  294  ;  sec  IIG,  963. 

Art.  947. — All  persons,  even  strangers,  ought  to  give  in- 
formation to  the  judge,  within  whose  jjrovince  it  lies,  of  the 
fact  which  gives  rise  to  the  appointment  of  a  tutor. 

Art,  948. — ^It  is  the  duty  of  the  competent  judge  to  whom 
this  information  is  given,  or  to  whom  a  petition  is  presented 
for  ai)pointing  a  tutor  or  curator  to  a  minor,  to  make  the  ap- 
pointment in  the  manner  hereafter  provided. 

Art.  949. — If  it  be  the  father  of  the  minor  who  presents 
the  petition  claiming  his  tutorship,  the  judge  shall  confer  it 
on  him,  only  requiring  of  him  an  oath  to  perform  the  duties 
well  and  faithfully. 

10  L.  98;  12  R.  63G  ;  2  A.  71. — See  aincndmciit  under  "Appoinlniont  of 
tutors  and  curators,"  §  1. 

Art.  950. — If  the  father  of  the  minor  be  dead,  and  his 
mother  claim  the  tutorship,  the  judge  shall  confer  it  on  her, 
if  she  has  not  entered  into  a  second  marriage,  only  requiring 
from  her  the  same  oath  as  in  the  foregoing  article. 

11  L.  G3,  108  ;  2  A.  553. — Sec  amendment  referred  to  in  the  preceding  article. 

Art.  951. — But  if  the  minor  be  the  child  of  a  first  mar- 
riage, and  the  mother  has  contracted  a  second,  the  judge  shall 
not  confer  the  tutorship  on  her,  during  the  life  of  her  second 
husband,  except  by  the  advice  of  a  family  meeting  duly  con- 
voked for  that  purpose. 

10  L.  459,402;  3  K.  390;  C.  C.  372. 

Art.  952. — If  it  be  one  of  the  ascending  relations  of  the 
minor  who  claims  the  tutorship,  and  the  minor  has  seVeral  as- 
cending relations  in  the  same  degree,  the  judge  shall,  on  a  pe- 
tition presented  to  him  for  the-  purpose,  direct  that  the  o1  hei 
ascending  relations  in  the  same  decree  be  summoned  to  show 


OF    THE    APPOINTMENT    OF    TUTOltS,    ETC.  327 

cause,  if  they  have  any,  why  the  appointment  prayed  for  shall 
not  be  made. 

6  N.  S.  455  ;  10  L.  54*;  3  R.  390. 

Art.  953. — If  it  be  a  relation  not  in  the  ascending  line 
who  claims  the  tutorship,  the  judge  shall  order  the  petitioner 
to  declare  under  oath  what  arc  the  minor's  relations  residing  in 
the  State,  who  arc  in  an  equal  or  nearer  degree  than  he  is, 
and  on  such  declaration  he  shall  order  that  such  relatives  be 
cited  to  show  whether  they  have  any  cause  for  opposing  the 
appointments  prayed  for. 

Art.  954. — If  there  be  conflicting  claims  between  the  as- 
cending and  other  relatives,  and  one  of  them  shall  pretend  a 
better  right  than  the  person  claiming  the  tutorship,  he  shall 
file  his  written  opposition  to  the  appointment,  in  the  office  of 
the  judge,  before  the  day  on  which  such  an  appointment  is  to 
be  made,  stating  substantially  his  reasons  for  the  opposition. 

3  R.  390. 

Art.  955. — The  judge  shall  determine  in  a  summary  way 
on  such  opposition,  and  shall  confer  the  tutorship  on  the  person 
whom  he  thinks  to  have  the  best  right  ;  but  the  other  party 
may  appeal  from  his  decision  as  hereafter  provided. 

3  R.  390;  see  580,  1034,  1049. 

Art.  956. — If  the  father  or  mother  of  the  minor  have  ap- 
pointed a  tutor  for  him  by  will,  the  tutor  thus  appointed  shall 
present  a  petition  to  the  judge  of  probates,  to  which  a  copy 
of  the  will  must  be  annexed,  praying  to  be  confirmed  in  Ms 
tutorship. 

7  L.  543,  644. 

Art.  957. — If  no  relation  of  the  minor  claim  the  tutor- 
ship, or  will  accept  the  same,  the  judge  may  appoint,  with  the 
advice  of  a  meeting  of  the  minor's  relations,  or  friends  if  he 
have  no  relations,  any  stranger  wilUng  to  act  in  that  capacity 
and  having  the  necessary  qualifications. 

6  L.  213,  500 ;  7  L.  543  ;  11  L.  446  ;  see  108. 

Art.  958. — A  minor,  who  has  arrived  at  the  age  of  puber- 


328  OF    THE    APPOINTMENT    OP'    TUTORS,    ETC. 

ty,  may,  in  his  own  name,  present  a  petition  to  the  judge  in 
order  that  curators  ad  bona  and  ad  lites,  may  be  appointed  for 
him  ;  he  shall  himself  designate  the  persons  whom  he  wishes 
to  be  nominated. 

But  the  minor  must  appear  in  person  to  confinn  the  state- 
ment in  his  petition. 

6  L.  246;  7  L.  6C>0;  see  110. — See  nniciidment  under  "Appointment  of  tu- 
tors and  curators,"  §  1. 

Art.  959. — If  a  minor,  under  the  age  of  puberty  be  ab- 
sent, the  judge,  with  the  advice  of  a  meeting  of  relations,  or 
of  friends  if  he  have  no  relations,  shall  appoint  for  such  minor 
a  curator  to  take  care  of  his  estate,  and  another  to  take  care 
of  his  person. 

Stat.  7th  Jpril,  1826,  p.  174.— §  17.  That  the  English  text 
of  article  nine  hundred  and  fifty-nine  be  made  to  correspond 
with  the  French  part  by  substituting  the  word  "above"  to  the 
word  "under"  in  the  first  line  of  said  article. 

Art.  960. — If  the  person  appointed  as  curator  or  tutor, 
have  reasons  to  assign  for  not  serving  as  such,  he  must,  within 
ten  days  after  having  had  notice  of  his  nomination,  if  he  re- 
side in  the  place,  deliver  to  the  clerk  of  the  court,  which  has 
nominated  him,  a  written  opposition,  setting  forth  the  grounds 
of  his  refusal  to  act. 

If  he  reside  not  in  the  place,  the  delay  of  ten  days,  granted 
for  filing  his  opposition,  shall  be  increased  at  the  rate  of  one 
day  for  every  four  leagues,  counting  tlic  distance  from  his  resi- 
dence to  the  place  where  the  court  which  made  the  appoint- 
ment is  held. 

Art.  961. — The  judge  shall  decide  summarily  on  the 
merits  of  such  opposition  ;  if  the  reasons  assigned  be  sufficient, 
he  shall  proceed  to  appoint  another  tutor  or  curator ;  in  the 
contrary  case,  he  shall  order  him  to  act  and  to  pay  the  costs 
of  t,he  opposition,  leaving  him  the  right  to  ajjpeal  from  his  de- 
cision as  hereafter  prescribed. 

Art.  962. — The  rules  above  prescribed  with  respect  to  the 


OF    THE    APPOINTMENT    OF    CURATORS.  329 

tutorship  of  minors,  shall  govern  as  regards  the  curatorship  of 
interdicted  persons. 

Art.  963. — Curators  must  be  appointed  to  represent  per- 
sons absent  ft-om  the  State,  who  have  property  in  the  State,  and 
are  unrepresented  therein.  Such  appointment  shall  be  made 
by  the  judge  of  probate  of  the  place  where  the  property  hes. 
The  person  claiming  such  curatorship,  shall  be  appointed,  if 
he  have  the  required  quaUfication,  and  give  the  surety  which 
the  law  directs. 

6  L.  35.5  ;   11  L.  156,  331 ;  2  A.  662. 

Art.  964. — The  above  provisions  shall  not  be  so  constraed 
as  to  prevent  persons  having  claims  against  a  minor,  or  a  per- 
son absent,  from  pursuing  the  same,  previous  to  a  curator  or 
tutor  having  been  appointed,  as  above  prescribed :  but  in  such 
cases,  the  person  claiming  must  in  his  petition,  pray  the  court 
to  which  it  is  addressed,  to  appoint  a  tutor  or  curator  ad  hoc 
to  defend  the  minor  or  absent  person  in  the  action. 

6  R.  142;  2  A.  662,  1010. 

§  3.  Of  the  appointment  of  Curators  to  vacant  successions  and  to 
absent  heirs. 

Art.  965. — The  mode  of  proceeding  to  be  pursued  by 
courts  of  probates,  in  making  inventories  and  sales  of  estates 
belonging  to  vacant  successions,  is  provided  by  special  laws. 

The  following  provisions  relate  only  to  the  ai)pointment  of 
curators  charged  with  the  administration  of  such  estates. 

1  L.  50;  9L.  142,  144,  146;  10  L.  462;  C.  C.  936,  3492. 

Art.  966. — One  wishing  to  be  appointed  curator  to  a  va- 
cant estate  or  to  the  estate  of  a  person  absent,  must  make  liis 
demand  by  a  petition  addressed  to  the  probate  judge  of  the 
place  where  the  succession  has  been  opened. 

5N.  S.  506;  7  L.  402;  C.  C.  1038,  1106. 

Art.  967. — On  the  filing  of  such  petition,  the  judge  shall 
give  pubUc  notice  of  the  same,  and  direct,  if  any  opposition 


330  OF    XnE    APPOINTMENT    OF   CURATORS. 

be  intended,  that  the  same  be  made  within  ten  days  from  the 
date  of  the  notice. 

5  N.  S.  500;  C.  C.  1107. 

Art.  0G8. — The  notice  sliall  be  given  by  wTitten  advertise- 
ment in  French  and  English,  wliich  must  be  posted  at  the 
door  of  the  parocliial  church  of  tlic  place,  if  there  be  one,  or  at 
the  door  of  the  court-liousc. 

Art.  969. — Besides  this  notice,  the  advertisement  must 
be  inserted  in  French  and  English,  as  hereafter  prescribed,  to 
wit :  in  New  Orleans  and  the  places  not  more  than  one  hun  - 
dred  miles  distant  from  the  same,  in  two  of  the  newspapers 
printed  in  that  city ;  and  in  the  places  beyond  that  distance, 
in  one  of  the  newspapers,  if  there  be  any  published  within  fifty 
miles  of  the  place  where  the  judge,  giving  the  order,  usually 
resides. 

7  L.  40;-,;  ('.  C.  1109 

Art.  970. — Opposition  to  applications  for  a  curatorship, 
must  be  made  within  ten  days  of  the  date  of  the  notice  that 
such  application  has  been  made. 

3L.  471;  4  A.  25;  C.  C.  111. 

Art.  971. — Such  opposition  must  be  in  writing  and  signed 
by  the  opponent  or  his  advocate :  it  must  be  delivered  to  the 
clerk  of  the  court  before  which  the  demand  has  been  brought. 

Art.  972. — This  opposition  can  only  be  founded  on  the 
allegation  of  a  better  right  on  the  part  of  the  person  opposing, 
than  that  of  tlic  person  claiming  the  tutorsliip ;  otherwise  it 
shall  be  rejected  with  costs,  and  shall  not  prevent  the  confirming 
the  tutorship  to  the  person  demandhig  it,  if  he  jjossess  such 
requisites  and  give  such  security  as  the  law  calls  for. 

6  L,  448  ;  7  L.  402 ;  10  L.  440 ;  13  L.  78 ;  1  R.  461 ;  10  11.  193  ;  sec  963. 

Art.  973. — If  the  opposition  rests  on  a  right  of  preference 
alleged  by  the  person  opposing,  the  court  shall  decide  on  the 
opposition  in  a  summary  manner,  and  shall  confer  the  tutor- 
ship according  to  law,  with  a  right  of  appeal  to  the  other  party, 
however,  as  hereafter  declared. 

3  L.  471 ;  C.  C.  1113  ;  see  580,  876,  1034. 


OF    THE    BENEFIT    OF    INVENTORY.  331 

§  4.  0/"  the  Benefit  of  Inventory. 

Art.  974. — The  heir  who  wishes  to  enjoy  the  benefit  of 
inventory,  and  to  have  time  for  dehberating,  shall,  as  soon  as 
he  is  made  acquainted  with  the  death  of  the  person  to  whose 
succession  he  is  called,  present  a  petition  to  the  judge  of  pro- 
bates where  the  succession  is  opened,  to  declare  his  intention 
of  taking  the  time  allowed  to  deliberate,  and  shall  pray  that 
an  exact  inventory  be  made  of  the  succession  property,  after 
removing  the  seals,  if  any  have  been  affixed. 

1  L.  185;  4  L.  202;  10  L.  541;  11  L.  155;  C.  C.  1032;  7  l\.  24;  12  R.41. 

Art.  975. — The  judge  to  whom  such  petition  is  presented, 
shall  proceed  to  make  an  inventory  of  the  property  of  the  suc- 
cession, either  in  person  or  by  appointing  some  notary  for  the 
purpose. 

— ^  7  R.  24;  12  R.  41. 

Art.  976. — During  the  time  allowed  for  making  the  inven- 
tory and  for  dehberating,  the  judge  shall  appoint  an  adminis- 
trator to  retain  the  property,  if  any  of  the  creditors  of  the 
succession  shall  require  it,  and  in  making  such  appointment, 
he  shall  prefer  the  beneficiary  heir :  such  administrator  shall 
give  good  and  sufficient  security,  in  the  same  manner  as  cu- 
rators of  vacant  estates  and  absent  heirs,  unless  the  said  ad- 
ministrator shall  prefer  giving  such  security  by  a  special  mort- 
gage. 

1  A.  181;  2  A.  462;  C.  C.  1034,  1042,  1119. 

Art.  977. — After  the  expiration  of  the  time  f  )r  making 
the  inventory  and  for  deliberation,  the  creditors  and  legatees 
of  the  succession,  or  any  of  them,  may  present  a  petition  to 
the  judge  of  probates  of  the  j)lace  where  the  succession  is 
opened,  and  demand  that  the  beneficiary  heir  be  cited  and 
made  to  declare  whether  he  accepts  or  refuses  the  succession. 

8  L.  414,  417;  9  L.  140;  7  R.  24 ;  12  R.  41  ;  C.  C.  1048. 

Art.  978. — If  on  such  demand  the  beneficiary  heir  shall 
offer  his  renunciation  in  due  form,  he  shall  be  dismissed  with 


332  OF    THE    SETTLEMENT    OF    SUCCESSIONS. 

costs,  and  the  administrator  of  the  succession  shall  pioceed  to 
sell  the  property  and  pay  the  debts,  under  the  authority  of 
the  judge  of  probates  wlio  apixiinted  him  in  the  same  manner 
as  curators  of  vacant  estates  are  required  to  do. 
8  L  420;  7  R.  24  ;   12  II.  41 ;  C.  C.  1029. 

Art,  979. — Where  the  presumptive  heir  of  a  i)erson  de- 
ceased has  not  i)rayed  for  time  to  deliberate,  every  creditor  or 
legatee  of  the  deceased  may,  ten  days  after  the  opening  of  the 
succession,  cite  such  heir  to  appear  before  the  judge  of  pro- 
bates, and  call  on  him  to  declare  whether  lie  accepts  the  suc- 
cession or  refuses  it. 

1  R.  24;   12  R.  41. 

Art.  980. — If  the  heir  thus  cited  declares  that  he  accepts, 
or  if  he  be  silent  or  make  default,  he  shall  be  considered  as 
having  accepted  the  succession  purely  and  unconditionally,  and 
may  be  sued  as  if  he  had  done  so. 

Art.  981. — But  if  he  declares  that  he  wishes  for  the  bene- 
fit of  inventory  and  for  time  to  deliberate,  the  judge  shall  de- 
lay pronouncing  on  the  matter,  until  the  expiration  of  the 
time  allowed. 

Art.  982. — But  if,  when  the  creditor  or  legatee  makes 
such  demand,  the  time  allowed  by  law  has  already  expired, 
the  heir  shall  be  obliged  to  declare  his  intention  within  a  time 
to  be  allowed  by  tlie  judge,  not  more  than  ten  days  from  that 
on  which  he  ought  to  have  given  his  answer, 

§  5.  0/ the  settlement  of  successions. 

Art.  983. — All  debts  in  money  which  are  due  from  suc- 
cessions administered  by  curators  appointed  by  courts  and  by 
testamentary  executors,  shall  be  liquidated  and  their  ])ayment 
enforced  by  the  court  of  probates  of  the  place  where  the  suc- 
cession was  opened. 

The  case  is  different  with  respect  to  the  action  of  re- 
vcndication  and  other  real  actions  which  shall  be  instituted 


OF    THE    SETTLEMENT    OF    SUCCESSIONS.  333 

against  such  estates  ;  they  may  be  brought  before  the  ordinaiy 
tribunals. 

Const.  1845;  arts.  62,  78,  79;    Const.  1852;  arts.  61,76. 

Stat.  25th  March,  1828,  p.  156.— §  13.  In  any  case  where 
a  partition  of  a  succession  has  been  or  may  be  made,  belonging 
to  one  or  several  heirs,  who  are  present  or  represented  therein, 
all  the  real  and  personal  actions  or  others  which  are  relative  to 
the  said  succession,  shall  be  brought  against  the  said  heirs,  be- 
fore the  district  court  of  the  district  where  the  said  succession 
is  Oldened,  which  court  shall  have  an  exclusive  jurisdiction  to 
try  the  same,  though  the  said  heirs,  or  any  of  them,  may  re- 
side out  of  the  said  district  :  Provided,  that  the  court  for  the 
first  judicial  district  of  this  State,  and  the  parish  court  of  the 
parish  of  New  Orleans,  shall  have  a  concurrent  jurisdiction  to 
try  the  said  causes,  whenever  the  succession  was  opened  in  this 
last  parish. 

§  14.  All  suits  brought  against  curators  and  other  admin- 
istrators during  the  time  of  their  administration  or  curatorship, 
shall,  after  the  expiration  of  said  time,  and  even  after  the  said 
curators  and  administrators  have  rendered  their  accounts  to  the 
heirs,  be,  and  remain  in  the  court  of  probates,  there  to  be  con- 
tinued and  tried  without  any  additional  formality  except  that 
of  making  the  heirs  parties  to  said  suits,  which  shall  be  ordered 
by  the  court  on  motion  of  any  of  the  parties,  or  on  apphcation 
of  such  heirs  themselves. 

§  15.  In  obtaining  possession  of  the  effects  of  a  succession, 
the  heirs  shall  not  be  permitted,  under  any  pretence  whatso- 
ever, to  have  an  actual  delivery  of  any  property  of  such  suc- 
cession which  may  be  in  suit,  or  to  receive  the  proceeds  or  any 
moneys  of  said  succession  when  there  shall  be  claims  thereon 
pending  in  the  said  courts,  unless  they  previously  give  good  and 
sufficient  security,  if  the  jilaintiff  or  plaintiffs  in  such  suits  re- 
quire it,  and  file  their  WTitten  obligation  to  that  effect  in  the 
said  court  of  probates,  which  security  shall  be  of  one-fourth 
over  and  above  the  amount  of  the  claims  for  money  thus  pend- 
ing, or  of  the  appraised  value  of  the  property  thus  claimed, 


334  OF    THE    SETTLEMENT    OF    SUCCESSIONS. 

wliich  estimation  shall  be  made  by  two  appraisers  appointed 
by  the  judgo 

3R.  92;  4R.  412;  5  R.  314  ;  7  R.  24  ;  1 1  R.  77  ;  12  R.  536;  1  A.  173,  204; 
2  A.  513;   3  A.  637. 

Art.  984. — No  bearer  of  a  claim  for  money  against  a  suc- 
cession administered  by  a  curator  appointed  by  a  judge  or  by 
a  testamentary  executor  or  administrator,  shall  commence  an 
action  against  such  succession,  before  presenting  his  claim  to 
the  curator, 

6L.  75;  19  L.  441;  3  R.  2G4 ;  5  R.  270;  7  R.  24  ;  10  R.  372;  12  R.  41,  489; 

2  A.  249. 

Art.  985. — If  such  claim  be  liquidated  and  be  acknowledg- 
ed by  the  curator  or  testamentaiy  executor  or  administrator,  he 
shall  write  on  the  evidence  of  the  claim,  or  on  a  paper  which  he 
shall  annex  to  it,  a  declaration  signed  by  him,  and  stating  that 
he  has  no  objection  to  the  payment  of  such  claim,  after  which 
the  bearer  of  such  claim  shall  submit  it  to  the  judge,  that  it 
may  be  ranked  among  the  acknowledged  debts  of  the  succes- 
sion. 

3  R.  92  ;  5  R.  270  ;  7  R.  24  ;  9  R.  61  ;  12  R.  16,  41,  489,  511  ;  2  A.  249. 

Art.  98G. — If  the  claim  be  not  liquida'ted,  or  if  the  curator 
or  testamentary  executor  or  administrator  have  any  objection 
to  it,  and  consequently  refuse  to  approve  it,  the  bearer  of  the 
evidence  of  such  claim,  whatever  may  be  its  amount,  may 
bring  his  action  against  the  Qurator  or  administrator,  in  the 
ordinary  manner,  before  the  court  of  probates  where  the  suc- 
cession was  opened,  and  may  obtain  judgment  in  the  same 
manner  as  in  other  courts. 

3  R.  92  ;  5  R.  9G,  270  ;  7  R.  24  ;  11  R.  209  ;  12  R.  41,  489,  511. 

Art.  987. — But  the  creditor  who  has  obtained  such  judg- 
ment, or  the  acknowledgment  of  his  debt,  can  only  obtain  the 
payment  of  it  concurrently  with  the  other  creditors  of  the  suc- 
cession^,  unless  it  be  such  a  privileged  claim  as  ought  to  be 
paid  without  delay. 

7  R.  24;  11  R.  209;  see  1063. 

Art,  988. — When  the  time  for  paying  creditors  shall  have 


OF    THE    SETTLEMENT    OF    SUCCESSIONS.  335 

arrived,  the  curators  or  testamentary  executors  shall  call  to- 
gether all  the  creditors  of  the  succession,  in  the  manner  pio- 
vided  by  law,  to  receive  what  is  due  to  them,  as  also  interest 
and  costs,  if  the  estate  be  sufficient  for  that  purpose,  or  to  de- 
teimine  the  order  in  which  they  shall  be  paid,  if  it  be  insuffi- 
cieat. 

9L.  49;  10  L.  358;  7  R.  24  ;  12  R.  41,611  ;  1  A.  92,  212;  see  1054. 

Art.  989. — As  the  creditors  of  estates  administered  by 
curators  or  testamentary  executors  or  administrators  can  only 
obtain  payment  after  certain  delays,  interest  shall  be  allowed 
on  their  debts,  if  the  estate  be  sufficient,  from  the  death  of  the 
debtor,  if  they  were  due  at  that  time,  or  from  the  date  when 
they  became  due,  if  it  were  after  that  event,  although  no  ju- 
dicial demand  may  have  been  made. 

6  L.  19  ;  362,  19  L.  441  ;  1  R.  393 ;  3  R.  270;  7  R.  24  ;  8  R.  488  ;  9  R.  276  ; 
10  R.  474  :  1  A.  92  ;  3  A.  323. 

Art.  990. — It  shall  be  the  duty  of  the  several  judges  of 
probates,  on  the  application  of  the  creditors  or  any  creditor  of 
a  vacant  estate,  to  cause,  on  the  requisite  advertisements  being 
made,  so  much  of  the  property  of  the  said  estate  as  is  neces- 
sary to  pay  the  debts  of  the  same,  which  may  be  due,  to  be 
offered  for  sale  and  sold  at  public  auction  to  the  highest  bidder 
fof  cash,  if  the  creditors  require  it  ;  and  if,  on  thus  offering 
Raid  property  for  sale,  the  appraised  value  should  not  be  bid 
and  obtained,  then,  the  same  shall,  in  not  less  than  fifteen, 
nor  more  than  twenty-five  days,  from  the  time  it  is  thus  offered, 
be  sold  at  public  auction  and  after  public  advertisement,  to  the 
highest  bidder,  for  what  it  will  bring,  on  a  credit  of  twelve 
months  ;  provided,  however,  that  in  all  sales  of  effects  belong- 
ing to  a  vacant  estate,  on  a  credit,  the  purchaser  shall  give 
bond  and  security  to  the  satisfaction  of  the  probate  judge  and 
curator,  and  a  mortgage  on  the  real  estate  so  purchased. 

Stat  15th  March,  1830,  p.  64.— §  1.  From  and  after  the 
passage  of  this  act,  it  shall  be  lawful  for  testamentary  execu- 
tors, administrators,  and  curators,  to  cause  the  property  real 
and  personal,  of  such  succession  or  successions   as  may  be  un- 


536  OF    THE    SETTLEMENT    OF    SUCCESSIONS. 

dcrthcir  administration,  to  be  sold  by  any  commissioned  auf-« 
tioneer,  and  sucli  sale  or  sales  so  made,  shall  be  {;ood  and  valid 
in  law  ;  provided  said  testamentarj-  executors,  administrators 
or  curators  (as  the  case  may  be)  comply  with  the  requests  of 
the  law,  relative  to  the  sale  of  successions,  or  vacant  estates, 
and  provided  the  said  testamentary  executor,  curator,  or  ad- 
ministrator, or  any  other  person,  cause  the  process-verbal  of 
such  sale  or  sales  when  made  in  the  parish  of  Orleans,  to  be  re- 
corded in  the  office  of  the  rej^ister  of  wills,  and  wlicn  made  in 
any  of  the  other  parishes  of  this  State,  in  the  office  of  the 
parish  judge. 

§  2,  All  the  laws  and  parts  of  laws  now  in  force,  which  are  in 
contravention  of  this  act,  be  and  the  same  are  hereby  repealed 

Stat.  7th  April,  1847,  p.  73.— It  shall  be  the  duty  of  the 
judge  of  the  court  in  which  a  succession  is  opened  to  order  the 
sale  of  all  i)roperties  belonging  to  said  succession,  to  be  made 
by  either  the  sheriff  of  the  parish,  or  by  such  auctioneer  or 
auctioneers  as  may  be  appointed  or  named  by  the  person  ad- 
ministering said  succession. 

7  L.  316;  8  L.  412;  9  L  48,  181  ;  9L.  378,  11  L.  156;  5  R.  96  ;  7  R.  24;  10 
R.  457  ;  11  R.  209  ;  12  R.  41,  511  ;  5  A.  437  ;  6  A.  446. 

Art,  991. — It  shall  be  the  duty  of  the  judge  of  probates 
in  all  cases  of  vacant  estates,  on  the  application  of  the  credi- 
tors or  any  creditor  thereof  whose  debt  shall  not  then  be  due,  to 
sell,  after  the  usual  advertisements,  upon  the  conditions  con- 
tained in  the  preceding  article,  so  much  of  the  estate  as  will 
be  sufficient  to  pay  the  claim  or  claims  of  the  creditors  who 
shall  make  the  application,  and  on  such  terms  of  credit  as  will 
correspond  with  the  falling  due  of  the  several  claims  of  the 
creditors. 

7  R.  24  ;  10  R.  457 ;  11  R.  209  ;  3  A.  407  ;  8cc  668. 

Art.  992. — The  principles  contained  in  the  two  preceding 
articles,  shall  apply  to  all  successions  accepted  with  benefit  of 
inventory,  whether  the  heirs  are  minors  or  of  age,  and  to  all 
successions  administered  by  administrators. 

4  R.  412  ;  5  R.  96 ;  7  R.  24  •  10  R.  467  ;  3  A.  407 


OF   THE    SETTLEMENT    OF    SUCCESSIONS.  337 

Art.  993. — Ten  days  after  the  classification  and  order  of 
the  payments  shall  be  fixed  by  court  of  probates,  and  as  often 
thereafter  as  a  majority  of  the  creditors  in  amount  may  require 
it,  it  shall  be  the  duty  of  the  curator  to  account  for  before  the 
judge  of  probates  and  pay  over  to  each  of  the  creditors  or  their 
representatives,  a  due  proportion  of  the  sums  which  he  may 
have  in  his  hands  ;  and  on  his  failing  to  render  his  account,  ten 
days  after  being  notified  of  the  demand  of  the  cioditors  to  that 
effect,  or  to  make  payment  within  ten  days  after  the  account 
rendered,  execution  shall  issue,  of  course,  in  the  name  of  all  the 
creditors  of  the  estate,  or  of  those  to  whom  he  has  failed  to 
make  payment,  against  all  the  property  of  said  curator  which 
shall  be  sold,  after  the  usual  advertisements,  for  what  it  will 
bring  in  cash. 

V  R.  24 ;  11  R.  209  ;  12  R.  41,  511 ;  see  1057. 

Art.  994. — When  tutors  and  curators  of  minor  heirs  ad- 
minister a  succession  with  the  benefit  of  inventory,  and  the 
said  tutors  or  curators  fail  to  pay  over  the  money  as  specified 
in  the  preceding  articles  for  the  government  of  curators  of^ 
vacant  estates,  execution  shall  issue  against  said  tutors  or  cu- 
rators in  the  same  manner  as  is  provided  in  said  article  against 
the  beneficiary  heir  and  curator  of  vacant  estate,  and  on  said 
execution,  the  property  of  said  tutor  or  curator  shall  be  sold 
in  the  same  manner  as  that  of  a  beneficiary  heir  and  curator 
of  vacant  estate. 

Y  R.  24;  10  R.  451  ;  12 R.  41. 

Art.  995. — What  is  said  in  this  section  in  relation  to  the 
liquidation  of  estates,  only  applies  where  such  estates  are  ad- 
ministered by  curators  or  other  persons  appointed  by  a  court, 
or  by  testamentary  executors. 

4  R.  20 ;  5  R.  96  ;  Y  R.  24  ;    12  R.  536  ;  1  A.  92,  204. 

Art.  996. — The  case  is  difierent  when  such  estates  are  in 

the  possession  of  heirs  either   present   or   represented  in  the 

State,  although  all  or  some  of  those  heirs  be  minors  ;  for   in 

such  cases  the  actions  for  debts-  due   from  such   successions 

22 


338  OF    ACCOUNTS   TO    BE   RENDERED,    ETC.         ^ 

shall  be  brought  before  the  ordinary  tribunals,  either  against 
the  heirs  themselves,  if  they  be  of  age,  or  against  their  cura- 
tor if  they  be  under  age,  or  interdicted. 

6  N.  S.  521  ;  5  L.  386  ;  10  L.  10,  17  ;  3  R.    29  ;  4    R.  412  ;  7   R.  21  ;  12  R. 
630  ;  1  A.  92,  204,  C.  C.  1051. 

^  6. —  Of  Accounts  to  be  Rendered  by  Administrators  of  Estates, 
and  other  Persofis. 

Art.  997. — The  judges  of  the  courts  of  probates  who 
have  appointed  or  confirmed  the  tutors  or  curators  of  minors, 
interdicted,  absent,  or  other  persons  unable  to  administer  their 
own  i)roperty,  testamentary  executors,  curators  of  vacant  es- 
tates or  absent  heirs,  or  other  i^ersons  administering  successions, 
alone  have  the  power  of  compelling  them  to  account  and  pay 
over  what  they  may  be  found  to  owe. 

Stcd.  13th  March,  1837,  p.  95.— §  3.  All  executors,  admin- 
istrators, curators  and  syndics,  shall  deposit  all  moneys  hereto- 
fore collected  by  them  as  such,  and  all  moneys  hereafter  col- 
lected, as  soon  as  the  same  shall  come  into  their  hands,  in  one 
of  the  chartered  banks  of  this  State  or  in  one  of  their  branches 
allowing  interest  on  deposits^  if  there  be  one  in  the  parish,  and 
shall  keep  a  bank  book  in  his  official  name  and  character,  and 
shall  on  no  account  remove  or  withdraw  said  dei)osits  or  any 
part  thereof,  until  a  tableau  of  distribution  shall  be  homologat- 
ed, or  unless  ordered  by  a  competent  court,  and  then  only  to 
pay  such  debts  as  may  be  ordered  for  payment ;  and  if  any 
executor,  administrator,  curator  of  a  vacant  succession  or  syn- 
dic, shall  fail  to  comply  with  the  jjrovisions  of  this  section, 
and  proof  shall  be  made  thereof  by  any  creditor  or  other  person 
interested,  wliicli  proof  may  be  administered  on  simple  motion 
after  ten  days'  notice,  which  motion  may  be  filed  in  the  clerk's 
office  at  any  time,  then  such  executor,  administrator,  curator 
or  syndic,  shall  be  condemned  jointly  and  severally  with  his 
secmity  or  securities,  to  pay  to  the  use  of  the  estate  twenty 
per  cent.  i)er  annum  interest,  on  the  amount  not  so  deposited 
or  withdrawn  without  order,  besides  all  special  damage  .6u£fer- 


OF    ACCOUNTS    TO    BE    RENDERED.    ETC.  33^ 

ed,  and  shall  be  dismissed  from  office  as  executor,  administra- 
tor, curator  or  sjmdic,  as  the  case  may  be. 

§  4.  Any  creditor  or  otlier  person  interested,  may  at  the 
regular  sittings  of  the  courts  in  New  Orleans,  and  in  the  coun- 
try, as  well  during  the  vacation  as  the  sitting  of  the  court  hav- 
ing jurisdiction,  file  in  the  clerk's  office  a  motion  to  know  whe- 
ther any  executor,  administrator,  curator  or  syndic,  has  any 
funds  ;  and  such  executor,  administrator,  curator  or  syndic, 
shall  be  bound  within  ten  days  to  ffie  a  true  statement  of  his 
account  with  the  bank  showing  the  amount  of  funds  collected 
by  him,  and  on  failure  so  to  do,  such  executor,  administrator, 
curator  or  syndic,  shall  be  dismissed  from  office,  and  pay  ten 
per  cent,  per  annum  interest,  on  any  sums  for  which  he  may  be 
responsible. 

§  6.  All  executors,  administrators,  curators  of  vacant  suc- 
cessions and  syndics,  shall  at  least  once  in  every  twelve  months 
render  to  the  probate  court  a  full,  fair  and  perfect  account  of 
their  administration,  and  on  failure  so  to  do,  shall  be  dismissed 
from  office  and  pay  ten  per  cent,  per  annum  interest,  on  all 
sums  for  which  he  may  be  responsible  from  the  date  of  the  ex- 
piration of  the  twelve  moiiths  aforesaid. 

T  N.  S.  106 ;  2  L.  52,  484  ;  see  924,  1007. 

Art.  998. — Therefore,  if  a  minor,  a  person  under  interdic- 
tion when  restored  to  his  rights,  an  absentee  whose  property 
has  been  administered  by  a  tutor  or  curator,  wishes  to  make 
his  tutor  or  curator  account  for  his  management,  he  shall  pre- 
sent his  petition  for  that  purpose  to  the  court  of  probates  by 
whom  such  tutor  or  curator  was  appointed,  praying  that  he 
may  be  cited  to  appear  in  the  ordinary  manner,  and  that  he 
may  be  decreed  to  give  an  account  of  his  administration,  or 
pay  such  sum  as  he  may  suppose  to  be  due. 

3  N.  S.  607;  3  L  245;  6  L.  30;  9  L.  239;  10  L.  474;  11  L.  21;  C.  C.  1181; 
see  1000,  1033. 

Art.  999. — The  minor  who  has  a  right  to  demand  this  ac- 
count, can  only  institute  the  action  in  his  own  name,  after  the 
attainment  of  full  age.     If  he  has  only  reached  the  age  of 


340  OF    ACCOUNTS   TO    BE    RENDERED,    ETC. 

puberty,  he  shall  be  assisted  by  a  curator  ad  lites,  even  if  he 
be  emancipated,  unless  he  be  a  married  man. 

Stat.  \2tk  March,  1828,  p.  154.— §  12.  That  the  nine  t 
hundred  and  ninety-nintli  article  of  the  Code  of  Practice  be 
so  amended  as  to  authorize  a  married  woman,  who  is  a  minor, 
to  sue  and  to  be  sued,  even  in  the  case  i)rovided  for  by  the 
said  article  ;  Provided,  she  acts  under  the  authority  and  with 
the  consent  of  her  husband,  though  himself  a  minor ;  and 
that,  in  such  case,  it  shall  not  be  necessary  to  appoint  to  her 
a  curator  ad  litem. 

3  L.  516;  9L.  571;  2  A.  553;  C.  C.  368. 

Art.  1000. — When  the  heirs  or  other  persons  entitled  to 
successions  which  are  administered  by  curators  appointed  by  a 
judge,  or  by  testamentary  executors,  shall  present  themselves, 
or  send  their  powers  to  reclaim  such  successions,  they  shall 
present  a  petition  to  the  judge  who  a])pointed  or  confirmed 
these  curators  or  executors,  praying  that  they  may  be  cited 
and  compelled  to  account  for  their  administration. 

4  R.  42,  278;  6  R.  9;  7  R.  183;  C.  C.  177. 

Art.  1001. — The  said  heirs  or  other  persons  claiming,  shall 
file  along  with  their  petition,  all  such  i)roofs  as  may  go  in  sup- 
port of  it,  to  the  end  that  the  curator  or  testamentary  execu- 
tor may  be  made  acquainted  with  them. 

4  R.  42,  278;  6R.  9;  7  R.  183 

Art.  1002. — The  judge  shall  pronounce  on  this  claim  in  a 
summary  manner,  as  soon  as  the  time  allowed  for  the  curators 
or  executors  to  answer  shall  have  expired. 

9  L.  416;  10  L.  171;  4R.  42,  278;  6  R.  9 ;  7  R.  183. 

Art.  1003. — If  from  the  examination  of  the  testimony 
produced  in  support  of  the  prayer,  the  judge  discovers  that  the 
petitioners  are  entitled  to  the  succession,  he  shall  put  them  in 
possession  of  it,  and  shall  direct  the  curator  or  executor  to 
render  an  accoimt  witliin  a  reasonable  time  to  be  fixed  by  him. 

Stat.  15th  March,  1828,  p.  156. — §  15.  In  obtaining  pos- 
session of  the  effects  of  a  succession,  the  heirs  shall  not  be 


OP    ACCOUNTS    TO    BE    RENDERED,    ETC.  341 

permitted  under  any  pretence  whatsoever,  to  have  an  actual 
dehvery  of  any  property  of  sucli  succession  which  may  be  in 
smt,  or  to  receive  the  proceeds  or  any  moneys,  of  said  succes- 
sion when  there  shaU  be  claims  thereon  depending  in  said 
couits,  unless  they  previously  give  good  and  sufficient  security 
If  the  plamtifF  or  plaintiffs  in  such  suits  require  it,  and  file 
their  written  obligation  to  that  effect  in  the  said  court  of  pro- 
bates,  which  security  shall  be  of  one-fourth  over  and  above 
the  amount  of  the  claims  for  money  thus  pending,  or  of  the 
api-ised  value  of  the  property  thus  claimed,  ;hich  esti- 
mation shall   be  made  by  two  appraisers  appointed  by  the 

10  L.  329;  11  L.  223 ;  4  R.  42,  278 ;  6  R.  9;7R.  183. 

Art  1004.— If  the  curator  or  executor  obeys  the  order  and 
renders  his  account,  the  heirs  or  other  claimants  shall,  within 
three  days  afterwards,  file  their  written  objections,  if  they  have 
any,  signed  by  themselves  or  their  counsel,  to  each  item  of  the 
account  to  which  they  object,  or  of  which  they  pray  for  the 
rejection.  •'   ^     ^ 

4L.  300;  9L.  48,59;  12  R.  155. 

Art.  1005.-The  judge  may  himself  decide  on  these  objec 
^ons,  or  refer  them  to  auditors,  to  make  a  report  on  thcni  to 

Art.  1006.-If  from  his  own  examination,  or  the  report  of 
the  audi  ors,  the  judge  thinks  the  objections  unfounded,  he 
shall  condemn  the  party  making  them  to  pay  the  costs  ;  if,  on 
the  other  hand,  he  considers  them  well  founded,  he  shall 
sentence  the  curator  or  executor  to  pay  the  costs  of  the  pro- 
ceedinc:.  ^ 


See  6  N.  S.  335. 


Art.  1007.-If  from  a  scrutiny  of  the  account  the  curator 
or  executor  shall  appear  to  owe  a  balance,  he  shall  be  sentenced 
to  pay  It  to  the  heirs  or  other  claimants,  with  interest  from 
he  day  of  judgment:  if  the  balance  is  in  his' favor,  the  pe- 
titioners shaU  be  adjudged  to  pay  him  in  the  same  manner 


342  OF    ACCOUNTS    TO    BE    RENDERED,    ETC. 

and  he  may,  until  such  pajincnt  be  made,  retain  the  property 
of  the  succession  which  may  be  in  his  hands. 

S  L.  194  ;  10  R.  479 ;  11  U.  1S:5 ;  1  A.  92  ;  See  7  L.  389 ;  8  L.  199 ;  9  L.  284 

Art.  1008. — The  rules  above  established  shall  be  observed 
in  all  cases  of  petition  for  an  account  brought  before  the  courts 
of  jirobatc. 

Art.  1009. — If  the  heirs  or  others  entitled  to  successions 
which  arc  administered  by  curators  appointed  by  a  judge,  do 
not  appear  or  send  their  j)o\vers  before  the  exj)iratioii  of  the 
time  at  which  such  administrators  are  to  render  their  accounts, 
according  to  law,  it  shall  be  the  duty  of  the  judge  of  i)robate3 
who  appointed  or  confirmed  them,  to  name  a  counsel  for  the 
absent  heirs,  if  there  be  not  one  already,  to  demand  an  account 
from  such  administrators,  and  to  make  them  pay  the  balance 
due,  if  there  be  any,  into  the  treasury  of  the  State. 

9  L.  284,  308  ;  10  L.  275  ;  see  6  L.  656  ;  C.  C.  1210,  1654;  sec  917,  1016,  1054. 

Art.  1010. — The  counsel  thus  appointed  shall  present  his 
petition  to  the  judge  of  probates,  and  shall  cause  the  curator 
or  executor  to  be  cited  and  directed  to  render  his  account 
within  the  time  determined  by  the  judge. 

Art.  1011. — If,  at  the  expiration  of  such  time,  he  refuses 
or  neglects  to  render  his  account,  the  judge  shall  issue  a  man- 
date directing  him  to  comply  with  the  provision  of  the  law, 
and  if  within  the  time  allowed  to  obey  this  mandate  the 
administrator  persists  in  refusing  to  render  an  account  with- 
out tendering  a  good  reason  for  the  delay,  the  judge  shall  order 
him  to  be  arrested  and  imprisoned  until  he  renders  the  account. 

Art.  1012. — When  the  tutor  or  curator  of  a  minor,  inter- 
dicted or  absent  person,  or  of  a  vacant  estate,  refuses  to  render 
an  account  to  those  who  have  a  right  to  demand  it,  such  per- 
sons may  compel  him  either  by  praying  that  he  be  imprisoned 
until  he  do  render  it,  or  by  having  his  property  and  income 
distrained,  or  by  using  any  other  means  which  the  law  may 
afford. 

See  2  L.  266. 


OF    THE    REMOVAL    OF    TUTORS,    CURATORS,    ETC.  343 


^7.   Of  the  Removal  of  Tutors,  Curators,  and  Testamentary 
Executors. 

Art.  1013. — Tutors  and  curators  of  minors,  interdicted  and 
absent  persons,  and  curators  of  vacant  estates  and  absent  heirs, 
or  other  administrators  of  successions,  may  be  removed  by  the 
court  of  probates  wliich  aj^pointcd  them,  for  any  of  the  causes 
specified  by  law. 

5  N.  a  382;  10  L.  474;  9  R,  S63;  C.  C.  1J49;  see  1018 

Art.  1014. — Testamentary  executors  may  be  deprived  in 
the  same  manner,  and  for  the  same  causes. 

9  R.  353. 

Art.  1015. — It  shall  be  the  duty  of  every  person  to  ac- 
quaint the  judge  of  probates  with  the  flict  rendering  it  proper 
to  remove  the  tutor  or  curator  of  a  minor  or  person  interdicted. 

1  L.  65;  10  L.  84;  see  1033. 

Art.  1016. — The  judge,  when  made  acquainted  with  such 
fact,  if  he  thinks  there  is  probable  cause  for  removal,  shall 
direct  the  subrogated  tutor  or  the  curator  ad  lites  of  such 
minor  to  prosecute  the  removal  of  the  tutor  or  curator  ad  honay 
or  if  the  said  minor  has  no  subrogated  tutor  or  curator  ad  lites, 
he  shall  appoint  a  curator  ad  hoc  to  commence  the  action. 

Art.  1017. — The  action  for  the  removal  of  the  tutor  or 
curator  of  a  minor  shall  be  commenced  by  petition  and  cita- 
tion, and  the  matter  shall  be  conducted  in  the  usual  form. 

9  R.  353,  354 ;  1  A.  20. 

Art.  1018. — The  removal  of  curators  of  vacant  estates  and 
absent  heirs,  and  that  of  testamentary  executors  or  other 
administrators  of  successions,  may  be  prayed  by  any  heir, 
creditor,  or  other  person  concerned,  and  the  suit  be  conducted 
in  the  same  manner  as  above. 

1  A.  20;  4  A.  123;  see  10  L.  477;  19  L.  31  ;  C.  C.  332;  sec  1014. 

Art,  1019. — The  judge  who  shall  be  made  acquainted 
with  any  fact  sufficieut  to  justify  the  removal  of  a  curator  of 


344  OF    THE    PARTITION    OF    ESTATES. 

a  vacant  Buccession  or  of  absent  heirs,  whom  he  has  appointed, 
may  direct  the  counsel  of  the  absent  heirs  whom  he  shall  ap- 
point for  the  purpose,  to  institute  a  suit  in  their  name  to 
obtain  a  removal  of  such  curator. 

9  R.  354. 

§  8.   Of  the  Partition  of  Estates. 

Art.  1020. — Whenever  a  minor,  interdicted  or  absent  per- 
son, is  interested  in  the  partition  of  a  succession,  it  shall  be 
made  by  judicial  authority. 

6  L.  474,  572;  1  A.  228;  see  3  L.  143;  C.  C.  1246;  see  116,  122,  946,  959. 

Art.  1021. — Even  when  all  the  heirs  are  of  full  age,  and 
present,  or  represented  in  the  State,  the  partition  shall  be 
made  by  the  same  authority,  if  one  of  them  refuses  the  parti- 
tion, or  they  cannot  agree  upon  the  mode  of  making  it. 

7  L.  160;  11  L.  446. 

Art.  1022. — All  partitions  of  succession  property  shall  bo 
made  by  the  court  of  probates  of  the  place  where  the  succession 
is  opened. . 

Art.  1023. — Every  heir,  whether  of  fuU  age  or  minor,  may 
force  his  co-heirs  to  a  partition. 

10  L.  458;  sec  8  L.  179,  676. 

Art.  1024. — The  heir  desirous  of  obtaining  a  partition, 
shall  present  his  petition  to  the  judge  of  probates,  praying  that 
his  co-heirs  may  be  cited  to  hear  the  sentence  of  partition  and 
the  mode  in  which  it  js  directed  to  be  made. 

10  L.  502;  17  L.  346;  19  L.  36;  4  A.  56,  260;  see  16  L.  157  ;  10  R;  C.  C. 
1230,  1231,  1234,  1246. 

•  Art.  1025. — The  judge  of  probates  to  whom  tliis  petition 
is  made,  shall  cite  to  appear  before  him,  the  other  co-heirs, 
although  all  or  any  of  them  have  their  residence  out  of  his 
jurisdiction. 

11  L.  446;  see  164,  1024. 

Art.   1026. — The   sheriffs   of  the   different   parishes,  to 


ON  THE  PARTITION  OF  ESTATES.  345 

whom  such  citations  arc  directed,  shall  serve  them  on  the 
parties  concerned  residing  in  their  parishes,  and  return  them 
vnth  their  report  to  the  court  which  issued  them,  in  the  same 
manner  as  with  ordinary  citations  in  other  cases. 

See  186,  582. 

Art.  1027. — At  the  expiration  of  the  time  allowed  for 
answering  the  petition,  the  judge  shall  decree  the  partition, 
direct  the  manner  in  which  it  shall  be  made,  and  refer  the 
parties  to  a  notary  whom  he  shall  appoint  to  make  the  parti- 
tion. 

8  L.  554,  577  ;  1  R.  512  ;  C.  C.  12G7  ;  sec  1033. 

Art.  1028. — If  in  the  course  of  the  proceedings  before  the 
notary,  any  controversy  should  arise  between  the  parties,  the 
judge  shall  decide  on  it  in  a  summary  manner,  on  motion  by 
the  first  party  applying  to  him,  and  on  giving  notice  to  the 
other  parties  and  a  reasonable  time  for  them  to  answer. 

See  1034. 

Art.  1029, — When  the  partition  is  completed  by  the 
notary,  any  person  interested  may  deposit  a  copy  of  the  pro- 
ceedings on  it,  in  the  office  of  the  court  which  directed  it,  and 
may  move  that  his  co-heirs  shall  be  called  to  state,  within  ten 
days  after  service  of  the  order  on  them  for  that  purpose,  any 
reasons  that  they  may  have  why  the  partition  shall  not  be 
homologated. 

6  N.  S.  654  ;  10  L.  502  ;  1  R.  149. 

Art.  1030, — If  the  co-heirs  have  any  objections  to  the 
manner  in  which  the  partition  was  made,  they  shall  make 
opposition  in  writing  to  the  homologation  prayed  for,  within 
the  time  above  allowed,  stating  the  en-ors  or  irregularities  of 
which  they  have  to  complain  in  said  partition. 

1  R.  149. 

Art.  1031. — If  the  judge  consider  the  opposition  well 
founded,  in  part  or  in  whole,  he  shall  order  that  the  partition 
be  rectified,  and  shall  refer  the  parties  to  the  same  or  another 
notary  whom  he  shall  appoint,  who  shaU  prepare  a  supplemen- 


346      OF  THE  PROCEEDINGS  OF  ALL  ACTIONS  IN 

tary  act  of  partition,  in  conformity  with  the  judge's  decision,  a 
copy  of  which  shall  be  on  the  files  of  the  court,  as  well  as  the 
act  of  partition. 

1  R.  1S9. 

Art.  1032. — If  the  judge  considers  the  opposition  of  the 
co-heirs  unfounded,  he  shall  confirm  the  act  of  partition,  and 
it  shall  become  final  between  the  parties,  provided  the  legal 
formalities  have  been  observed, 

7  N.  S.  312  ;  1  R.  139  ;  sec  Slat.  ISJth  March,  1828,  §  13. 


Sec.  II. — 0/the  Proceedings  in  relation  to  all  Actions  brought 
in  the  Courts  of  Probates. 

Art.  1033. — Whenever  a  proceeding  is  commenced  in  the 
court  of  probates  by  citation,  and  no  shorter  time  has  been 
fixed  by  law,  the  defendant  shall  have  the  same  delay  to  a})pcar 
and  answei:,  as  in  the  ordinary  tribunals  of  original  jurisdiction. 

Art.  1034. — Whenever  it  is  said  in  this  title,  that  a  cause 
shall  be  decided  in  a  summary  manner,  the  judge  shall  pro- 
nounce upon  it  with  the  greatest  practicable  celerity,  giving 
it  a  preference  over  all  other  petitions  to  which  the  law  has 
not  afforded  the  privilege  of  a  summary  process. 

5  R.  96  ;  6  R.  9. 

Art.  1035. — Judges  of  probates  shall  sit  for  the  trial  of 
contested  cases  at  least  once  a  month,  on  a  day  to  be  fixed  by 
them,  except  in  the  city  of  New  Orleans,  where  the  said  court 
shall  sit  at  least  once  a  week  to  decide  cases  pending  before  it. 

With  regard  to  summary  cases  they  shall  hear  them  every 
day,  at  certain  hours  to  be  appointed  by  them,  6t  as  often  as 
may  be  necessary. 

Const.  1845,  art.  78;  Const.    1852,  art.  71  ;   sec  art.  921    and  amendment; 
5  R.  96;  11  L.4a6;  1  A.  20. 

Art.  103G. — All  cases  tried  before  a  court  of  probates 
shall  be  decided  without  the  intervention  of  a  jury,  even  if  the 
parties  should  wish  for  one. 


THE  COURTS  OF  PROBATES.  347 

Art.  1037. — Courts  of  probates  have  power  to  issue  orders 
of  arrest,  attachments,  sequestration,  writs  of  distringas,  pro- 
visional seizure,  execution  and  injunction,  in  all  cases  where 
they  may  be  necessarj  and  proper  :  to  compel  the  attendance 
of  witnesses  ;  to  issue  commissions  for  taking  their  depositions  : 
to  appoint  experts,  auditors  or  arbitrators  ;  to  compel  parties 
or  other  individuals  to  produce  title  deeds,  papers,  or  other 
objects  which  may  be  in  their  possession  ;  to  punish  contempts 
of  their  authority,  as  other  judges  may  ;  and  in  short,  to  ex- 
ercise all  such  other  powers  not  enumerated  in  this  title,  as 
may  be  necessary  to  enforce  their  jurisdiction. 

1.  R.  271;  4R.  278;  see  210,  et  seq ;  269,  etseq;  248,  ct  seq ;   641,  et  scq; 
296  et  seq  ;  471,  etseq;  425,  et  seq;  441,  c^  seq;  473,  et  seq  ,  131,  et  seq. 

Art.  1038. — Courts  of  probate  may  call  meetings  of  the 
creditors  of  such  successions  as  are  administered  under  their 
authority,  when  the  curators  or  executors  or  other  administra- 
tors of  successions  think  such  meetings  necessary  to  ascertain 
the  wish  of  the  creditors  with  regard  to  the  manner  of  selhng 
the  property. 

Art.  1039. — Courts  of  probate  may  homologate  the  de- 
liberations of  such  creditors  in  the  same  manner  as  is  done  in 
cases  of  bankruptcy,  and  may  pronounce  summarily  on  such 
opposition  as  shall  be  made. 

2  A.  782;  sec  1034. 

Art.  1040. — Courts  of  probate  may  adopt  such  rules  of 
proceeding  as  they  may  think  proper,  in  cases  not  provided  for 
by  the  present  title,  provided  they  be  not  incompatible  with 
what  is  here  contained. 

Art.  1041. — But  judges  of  probates  cannot,  as  such,  grant 
writs  of  habeas  corpus,  or  issue  any  of  the  mandates  mentioned 
in  the  tenth  chapter  of  the  first  title  of  this  second  part. 

1  A.  75;  see  7'Jl,  792. 

Art.  1042. — The  testimony  of  witnesses  in  causes  before 
the  courts  ol'  jirobates,  shall  be  taken  in  writing,  and  annexed 
to  the  record,  and  a  list  shaU  be  made  of  such  documents  as 


348  OF    THE    PROCEEDINGS   IN    ALL    ACTIONS    IN 

are.  produced  by  the  parties,  and  arc  not  annexed  to  the  record, 
that  they  may  be  read  on  the  appeal. 

16  L.  236  ;  1  R.  2;  3  A.  654 ;  4  A.  487,  500 ;  0  A.  530;  see  6  N.  S.  102. 

Art.  1043. — The  rules  relative  to  exceptions  to  the  judge's 
opinions  on  such  points  of  law  as  arc  submitted  to  him,  to  the 
mode  of  demanding  and  granting  a  new  trial,  of  signing  the 
final  judgment,  of  appealing  from  it,  giving  security  on  such 
appeal,  taking  a  copy  of  the  record  and  filing  it  in  the  appel- 
late court,  and  of  citing  the  appellee,  are  the  same  as  are  pro- 
vided for  the  courts  of  original  jurisdiction,  in  the  first  title  of 
this  part. 

Art.  1044, — All  the  rule  concerning  pleadings  and  orders 
which  are  required  to  be  in  English  and  French,  before  the 
other  tribunals,  as  provided  in  the  first  title  of  this  part,  shall 
prevail  also  in  the  courts  of  jjrobates,  unless  the  parties  con- 
sent that  they  shall  be  in  English  only. 

Art.  1045. — The  judges  of  the  courts  of  probates,  in 
parishes  where  there  are  no  registers,  and  the  register  of  wills 
for  the  parish  of  Orleans,  shall  keep  two  records  in  the  same 
form  as  is  directed  for  clerks  of  the  district  courts  of  the  State. 

Art.  104G. — The  register  of  wills  of  New  Orleans  shall, 
under  the  direction  of  the  judge,  make  the  inventories  and 
sales  of  succession  property,  which  are  directed  by  law  to  be 
made  by  the  courts  of  probates,  independently  of  such  duties 
as  they  have  to  perform  in  coinuion  with  other  clerks. 

2L.  328;   11  L.  166.  ' 

Art.  1047. — The  sheriffs  of  the  different  parishes  shall 
execute  all  the  orders,  judgments  and  decrees  rendered  by  the 
courts  of  probates  in  their  respective  parishes,  and  shall  receive 
the  same  emoluments  as  are  allowed  them  in  the  district 
courts. 

Sec  7  CO. 

Art.  1048. — The  sheriffs  shall  also  attend  or  send  one  of 
their  deputies  or  constables  to  the  courts  of  probates  which 
shall  be  held  in  their  parishes,  and  for  such  attendance  they 


THE  COURTS  OF  PROBATES.  349 

shall  be  allowed  one  dollar  on  every  cause  decided,  which  fee 
shall  be  taxed  and  paid  by  the  party,  or  succession  which  shall 
be  sentenced  to  pay  the  costs. 

See  920. 

Art.  1049. — Appeals  shall  be  carried  from  the  courts  of 
probates  directly  to  the  supreme  court,  in  all  cases  where  th( 
matter  in  dispute  shall  exceed  the  sum  of  three  hundred  dol- 
lars. 

3  R.  5  ;  see  874,  1051 

Art.  1050. — The  appeal  shall  be  taken  in  the  same  man- 
ner from  judgments  confirming  or  removing  a  tutor  or  curator 
of  a  minor,  interdicted  or  absent  person,  of  a  vacant  estate  or 
absent  heirs  when  the  value  of  the  succession  property  shall 
exceed  the  sum  of  three  hundred  dollars. 

8  N.  S.  286  ;  3  L.  260,  446  ;  3  R.  5  ;  see  876,  1059. 

Art.  1051. — When  the  object  in  dispute  or  the  property 
of  the  succession  does  not  amount  to  three  hundred  dollars, 
but  exceeds  one  hundred,  the  appeal  from  the  courts  of  pro- 
bates, except  those  from  the  parish  of  Orleans,  shall  be  carried 
to  the  district  court  within  the  jurisdiction  of  which  the  court 
of  probates  is  held. 

The  district  court  shall  proceed  in  the  same  manner  as  is 
prescribed  by  this  code  in  relation  to  appeals  from  the  parish 
to  the  district  court. 

See  569,  1049. 

Art.  1052. — There  shall  be  no  appeal  from  the  decisions 
of  the  court  of  probates  for  the  parish  of  Orleans  where  the 
object  in  dispute  is  of  less  value  than  three  hundred  dollars. 

The  constitution  of  1845  having  abolished  exelusivc  probate  courts  and 
vested  jurisdiction  in  the  district  courts;  and  no  exclusive  probate  courts  hay 
ing  been  created  under  the  constitution  of  1852,  these  articles  (1051  and  1062) 
are  no  longer  in  force. 

Art.  1053. — When  a  judgment  shall  be  rendered  for  a  sum 
of  money,  against  a  curator  to  a  vacant  succession,  or  absent 
heirs,  or  against  a  testamentary  executor  or  other  administra- 
tor, such  administrator  shall,  within  three  days  after  the  judg- 


350  OF    THE    PROCEEDINGS    IN    ALL    ACTIONS    IN 

ment  has  been  notified  to  him,  if  he  has  a  sufficient  amount  in 
his  liands,  discharge  tlie  amount  of  the  judgment,  if  it  be  for  a 
privileged  debt,  such  as  funeral  or  law  charges,  or  others  of 
that  kind,  which  are  to  be  paid  in  preference  to  all  others,  be- 
fore the  exi)iration  of  the  three  months  within  which  curators 
of  estates  and  testamentary  executors  are  bound  to  make  pay- 
ment of  the  debts  due  by  the  estate  which  tlicy  administer. 

7  R.  46;  see  10  L.  12C. 

Art.  1054. — But  if  it  be  for  an  ordinary  debt  the  cura- 
tor, testamentary  executor  or  other  administrator  cannot  be 
compelled  to  pay  the  amount  of  such  judgment,  until  after  the 
expiration  of  the  three  months  allowed  him  to  ilischarge  the 
debts  of  the  succession,  and  if  the  time  be  expired,  he  shall 
pay  the  amount  of  such  judgment  concurrently  with  the  other 
debts  of  the  succession,  by  applying  to  the  judge  of  probates 
who  appointed  him,  for  a  convocation  of  the  creditors,  in  the 
manner  i)rcscribed  by  law,  that  he  may  distribute  among  them 
the  sums  whicb  may  be  in  his  possession. 

16  L.  126;  1  R.  40;   12  R.  511. 

Art.  1055. — But  if  the  curator,  executor  or  other  adminis- 
trator has  no  funds  in  his  hands,  he  shall  inform  the  sheriff, 
when  the  judgn^ent  is  notified  to  him,  that  he  has  not  sufficient 
funds  to  satisfy  it. 

6  R.  68;7  R.  46;  9R.  276  ;12R.  511. 

Art.  1056. — The  party  obtaining  the  judgment,  may, 
thereupon  make  a  motion  to  the  court  that  the  curator  or  ex- 
ecutor shall  be  compelled  to  prove  the  truth  of  his  declaration, 
by  filing  in  court,  within  a  time  to  be  specified,  a  brief  state- 
ment of  his  condition,  as  administrator  or  executor  with  regard 
to  the  said  succession. 

6  R.  68;  9  R.  276  ;    12  R.  511. 

Art,  1057. — If  the  curator,  testamentary  executor  or  ad- 
ministrator, refuses  or  neglects  to  pay  the  amount  for  which 
judgment  has  been  rendered,  in  one  of  the  modes  pointed  out 
in  the  preceding  articles,  or  if  he  fails  to  prove  that  he  has  no 


7nE  COURTS  OF  PROBATES.  351 

funds  in  his  hands,  belonging  to  the  succession,  the  party  in 
whose  favor  the  judgment  was  rendered,  may  take  out  an  exe- 
cution against  him,  under  which  his  property,  to  a  sufficient 
amount  to  pay  the  debt,  shall  be  seized  and  sold. 

6  R.  68  ;  9  R.  276  ;  12  R.  511  ;  see  993. 

Art.  1058. — If  the  judgment  direct  that  something  shall 
be  given  or  delivered,  or  that  something  shall  be  done  or  refi'ain- 
ed  from,  the  party  in  whose  favor  it  is  rendered,  may,  on  the 
curator,  executor  or  administrator  failing  to  satisfy  it  within 
three  days  after  it  is  notified  to  him,  and  when  the  judgment 
shall  have  acquired  the  force  of  res  judicofa,  obtain  an  order 
to  distrain  the  property  of  such  administrator,  until  he  com- 
plies with  the  judgment. 

11  L.  498;  set  630. 

Art.  1059. — When  an  appeal  is  made  from  a  judgment 
appointing  or  removing  a  tutor  or  curator  of  a  minor,  inter- 
dicted or  absent  person,  or  of  a  vacant  succession  or  absent 
heirs,  or  other  administrators  of  successions,  such  appeal  shall 
not  suspend  the  execution  of  the  judgment,  but  it  shall  havo 
eftect  pro\dsionally,  until  the  apjDcal  is  decided. 

5  A.  518;  see  580. 


352  OF   THE   JURISDICTION   OF   JUSTICES   OF 


TITLE   IV. 

OF  PROCEEDINGS    BEFORE    JUSTICES   OF    THE 

PEACE. 


CHAPTER  I. 

OP   THE   JUKISDICTION    OF   JUSTICES   OF    THE   PEACE    IN    CIVIL 

MATTERS, 

Art.  1060. — Justices  of  the  peace  have  jurisdiction  both 
in  civil  and  criminal  matters.  It  is  their  civil  jurisdiction 
which  is  treated  of  in  the  present  title. 

Art,  1061, — Justices  of  the  peace  have  an  exclusive  origin 
nal  jurisdiction  in  all  the  civil  cases  hereafter  mentioned. 

4  L.  12. 

Art.  1062. — With  regard  to  the  civil  jurisdiction  of  justi- 
ces of  the  peace,  three  things  are  to  be  considered  : 

1.  The  value  of  the  object  in  dispute  ; 

2.  The  nature  of  the  case  submitted  to  them  ; 

3.  The  domicil  of  the  defendant. 

Art.  1063. — Justices  of  the  peace  may  pronounce  judg- 
ment : 

1.  On  all  claims  for  sums  of  money,  by  whatever  right  they 
are  claimed,  whether  as  debts,  damages,  jfines  or  taxes  : 

2.  On  all  claims  for  the  restitution  of  movable  property  ; 
But  in  neither  case  have   they  any  jurisdiction,  when  the 

value  in  dispute  exceeds  the  sum  fixed  in   the   two  following 
articles. 


THE    PEACE    IN    CIVIL    MATTERS.  353 

No.  93.  Stat  Sth  April,  1853.— §  1.  From  and  after  the 
passage  of  tliis  act,  justices  of  the  peace  throughout  this 
State  shall  have  the  power  to  ai^point  curators  ad  lites,  to 
enable  minors  to  present  their  claims  before  said  justices  of  the 
peace,  when  the  amount  claimed  shall  not  exceed  one  hun- 
dred dollars  :  Provided,  there  be  neither  natural  nor  legal 
tutor  to  said  minors,  and  that  it  be  made  to  appear,  by  proper 
affidavit,  that  the  minors  are  transient  persons  following  some 
trade  or  occupation,  and  are  without  parents  in  this  State. 

§  2.  Said  curator  ad  litem  shall,  in  no  case,  be  entitled  to 
any  fees  nor  commission  on  the  amount  of  any  judgments 
collected,  and  shall  have  no  control  over  any  moneys  arising 
therefrom. 

§  3.  Said  judgments,  when  collected  by  the  constable  of  the 
court  in  which  the  suit  was  instituted,  shall  by  him  be  paid 
over  to  the  minor  himself  without  additional  costs  or  com- 
mission. 

Art.  1064. — Justices  of  the  peace,  except  those  of  the 
city  and  precincts  of  New  Orleans,  have  cognizance  of  aU 
cases  of  the  nature  of  those  described  above,  where  the  matter 
in  dispute  does  not  exceed  the  sum  of  fifty  dollars. 

Const.  1852,  art.  78. 

Stat.  7th  April,  1826,  p.  174.— §  1.  Hereafter,  justices  of 
the  peace  shaU  have  jurisdiction  when  the  amount  claimed  or 
value  of  the  object  in  dispute  does  not  exceed  one  hundred  dol- 
lars exclusive  of  interest,  subject  to  an  appeal  to  the  district 
court  in  all  cases  when  the  amount  sued  for,  or  the  value  of 
the  object  in  dispute  exceeds  ten  dollars  :  Provided,  that  this 
section  shall  not  be  construed  to  extend  the  jurisdiction  of  jus- 
stices  of  the  peace  over  other  objects  of  property,  than  those 
embraced  by  existing  laws  ;  the  intention  of  this  section  be- 
ing to  increase  the  amount  of  jurisdiction  and  determine  the 
amount  for  which  appeals  may  be  granted. 

§  2.  Justices  of  the  peace  may  celebrate  marriages  within 
their  respective  parishes. 
23 


354  OF    THE   JURISDICTION    OF    JUSTICES    OF 

Art,  1065. — Justices  of  the  peace  in  the  city  and  precincts 
of  New  Orleans  exercise  the  same  jurisdiction,  to  the  amount 
of  one  hundred  dollars,  and  no  more. 

Art.  1066. — The  district  and  parish  courts  have  no  origi- 
nal jurisdiction  in  causes  of  which  the  cognizance  is  thus 
given  to  justices  of  the  peace  exclusively. 

4  L.  12. 

Art.  1067. — To  ascertain  the  amount  in  dispute  before 
justices  of  the  peace,  regard  must  be  had  to  the  demand,  with- 
out considering  interest  and  charges  which  may  enlarge  the 
sum. 

Art.  1068. — Justices  of  the  peace  have  no  jurisdiction 
when  the  right  of  property  or  the  possession  of  an  immovable 
or  slave,  or  the  right  of  imposing  a  tax  or  toll,  is  called  in 
question,  although  the  amount  of  the  demand  may  not  exceed 
the  sum  of  which  they  are  allowed  to  take  cognizance. 

Stat.  7th  April,  1826,  p.  174.— That  the  article  one  thou- 
sand and  sixty-eight  be  amended  by  striking  out  the  words  : 
"  or  the  right  of  imposing  a  tax  or  toll "  which  exist  in  said  ar- 
ticle, 

Stat.  2d  April,  1832,  p.  150.— §  1.  Hereafter  the  police 
juries  of  the  different  parishes  of  this  State,  are  hereby  author- 
ized and  empowered,  if  they  deem  it  proper,  to  divide  their  re- 
spective parishes  into  as  many  sections  as  they  may  think 
proper,  and  for  each  section  thus  laid  off,  one  or  more  justices 
of  the  peace  may  be  appointed,  if  there  bo  not  a  sufficient  num- 
ber resident  therein. 

§  2.  In  future,  no  justice  of  the  peace  shall  hold, 
exercise,  or  entertain  jurisdiction  in  any  civil  matter  where  the 
defendant  does  not  reside  witliin  the  limits  of  his  ward ; 
jjrovided,  that  in  cases  where  there  is  no  justice  of  the  peace 
resident  in  any  ward,  when  he  is  absent,  or  where  there  ex- 
ists some  legal  ground  for  his  recusation,  then  the  nearest 
justice  of  the  peace  to  the  residence  of  the  defendant,  may  ex- 
ercise jurisdiction. 

§  3.  That  should  the  police  jury  of  the  parish  of  Jefferson, 


THE    PEACE    IN    CIVIL    MATTERS.  855 

divide  the  said  parish  into  wards,  as  authorized  by  this  act,  the 
justice  of  the  peace  in  the  ward  containing  the  suburbs  of  the 
Nuns,  Lafayette,  Livaudais,  and  Wiltz,  shall  have  jurisdiction 
up  to  one  hundred  dollars,  with  a  right  to  the  parties  of  an  ap- 
peal for  all  sums  over  ten  dollars,  to  the  parish  judge  ;  the 
proceedings  had  before  the  said  justice  of  the  peace,  shall  be 
the  same  as  those  prescribed  by  law  for  the  associate  judges  of 
the  city  court  of  New  Orleans. 

Art.  1069. — In  civil  cases  within  their  competence,' justices 
of  the  peace  can  only  cite  before  them  such  persons  as  are  do- 
miciliated or  residing  within  the  limits  of  their  jurisdiction,  or 
strangers  who  may  chance  to  be  there. 

In  this  case  the  term  strangers  applies  to  such  as  have  no 
domicil,  or  fixed  place  of  residence  in  the  State. 

Art.  1070. — Justices  of  the  peace  can  only  exercise  theii 
authority  in  the  limits  of  the  parish  for  which  they  are  ap- 
pointed, or  in  such  limits  as  are  prescribed  to  them  by  special 
laws. 

Art.  1071. — Justices  of  the  peace  decide  without  appeal, 
in  the  city  and  precincts  of  New  Orleans,  on  all  demands, 
within  their  competence,  where  the  principal  of  the  demand 
does  not  exceed  twenty  dollars  ;  and  in  the  rest  of  the  State, 
on  all  demands  where  the  principal  does  not  exceed  ten 
dollars. 

On  aU  judgments  exceeding  these  sums,  an  appeal  is  al- 
lowed in  the  manner  hereafter  provided. 

Art.  1072. — If  a  justice  of  the  peace  before  whom  an  ac- 
count is  brought,  is  of  kin  or  allied  to  one  of  the  parties,  he 
may  be  challenged  by  the  other,  and  in  that  case  he  shall 
send  the  cause  to  be  tried  by  the  justice  of  the  peace  living 
nearest  to  the  domicil  or  usual  place  of  residence  of  the  de- 
fendant. 


356  OF    THE    MODE    OF    TRIAL 


CHAPTER  II. 

OF  THE  MODE  OF  TRIAL  BEFORE  JUSTICES  OF  THE  PEACE. 

Art.  1073. — The  claim,  the  answer,  and  the  other  pro- 
ceedings in  causes  brought  before  justices  of  the  peace,  are 
piade  verbally,  and  there  are  no  written  acts  but  such  as  are 
expressly  required  by  the  present  title. 

Art.  1074. — To  preserve  a  record  of  what  takes  jilace  be- 
fore therQ,  justices  of  the  peace  shall  keep  a  bound  book,  in 
which  they  shall  set  down,  in  the  order  of  date,  the  different 
causes  which  are  brought  before  them,  and  in  this  record  they 
shall  state  : 

1.  The  title  of  the  suit,  that  is,  the  names  of  the  plaintiff 
and  defendant ; 

2.  The  object  and  the  amount  of  the  demand,  if  it  be  a 
sum  of  money  wliich  is  claimed ; 

3.  The  date  of  the  citation,  and  the  service  of  it ; 

4.  The  answer  of  the  defendant,  if  he  appears,  and  his 
non-appearance,  if  he  makes  default ; 

5.  The  names  of  the  witnesses  produced  by  both  parties  ; 

6.  The  date  of  the  judgment,  and  its  substance,  Avhich 
shall  be  written  in  full ; 

7.  The  date  of  the  appeal,  if  one  has  been  taken. 

Art.  1075. — The  formalities  required  above  in  the  mode 
of  keeping  the  record,  are  not  indispensable,  and  their  omission 
does  not  nuUify  the  proceedings. 

Art.  1076. — But  when  such  record  is  regularly  kept,  a 
copy  of  it  certified  by  the  justice  shall  be  admitted  in  evi- 
dence on  the  appeal,  with  respect  to  the  facts  which  are  declared 
in  it. 

Art,  1077. — When  a  suit  is  instituted  before  a  justice  of 
the  peace,  he  shall  make  a  note  in  his  record,  of  the  date  and 


BEFORE   JUSTICES    OF    THE    PEACE.  357 

nature  of  the  demand,  and  shall  immediately  prepare  a  eita 

French  and  English  ,f  either  party  speaks  French  as  a  mother 
tongue,  othenvise  the  citation  to  be  in  English  only,  to   all  he 
defendant  before  him,  to  answer  said  demand,  and  he  sha    de 
Uver  the  said  citation  to  any  constable  of  the  pa,  1    hat    t" 
may  be  serx-ed  on  the  defemlant  ' 

Art  1078.-The  constable  to  whom  the  citation  is  de- 
ivered  shaU  serve  it  on  the  defendant  by  delivering  said  cita- 
Um  to  him,  or  by  leaving  it  at  his  usual  place  of  residence 

n.tif;rr.  -'''- ''''-' '''  -'-''  •^"'-  -  ■>'-  -^ 

AitT.  1079._If  the  defendant  be  a  mariner,  cr  person  em- 
ployed on  board  a  ship  or  other  vessel,  and  has  'no  oJhe  Inov™ 
place  of  residence  but  said  ship,  the  constable  may  serve  the 
citation  by  delivering  it  to  him  in  person,  or  by  leavin.  it  on 
board,  with  some  free  person  of  the  crew  whom  he  shalf  judg^ 
to  be  above  the  age  of  fourteen  years  ^  ^ 

thedefcndaTT?"  T"-''"""  ^''"  ^"™"°  «- -''''ion  on 
the  defendant,  shall  return  in  writing  to  the  justice  the  date 

::t::ron[i:fiirzr------"-»ot^^^ 

AuT.  1081.— If  any  dispute  arise  concerning  the  foct  of 
such^sernce,  or  its  date,  the  constable  shall  be'a  .0^^ 

AET  1082._Thc  defendant  thus  cited,  shall  only  be 
obliged  to  appear  and  answer  to  the  action,  the  day  aftei  the 
service  of  the  citation,  if  he  reside  or  happens  to  be  In  t  le  ci  tv 
or  precincts  of  New  Orlean.,,  or  within  ten  days  afte  ,  2 
vice,  in  other  i)arts  of  the  State 

Art.  1083._When  the  defendant  appears  the  iustice 
Bhal    record  his  an.swer,  and  if  he  decline's  the  j    isd    tl" 

art.  1084.-If  both  parties  are  ready  to  try  the  eau.se 

ali"fif  "r'T""'  •"  "^"  i-™g-otherwise'«t  juS 
BhaU  a,  such  a  day  and  hour  as  he  thinks  proper,  aliowiug 


358  OF    THE    MODE    OF    TRIAL 

sufficient  time  to  the  parties  to  summon  their  witnesses,  if  it 
be  necessary. 

Art.  1085. — If,  at  the  time  fixed  for  the  hearing  of  the 
cause,  one  of  the  parties  foils  to  appear,  the  justice,  after  the 
lapse  of  an  hour,  if  the  party  reside  in  town,  or  after  waiting 
an  hour  longer,  if  they  reside  in  the  country,  shall  discharge 
the  defendant  with  costs  if  it  be  the  plaintiff  who  makes  de- 
fault ;  and  if  it  be  the  defendant,  the  justice  shall  proceed  to 
hear  the  plaintiff's  testimony,  and  if  he  find  the  claim  to  be 
well  founded,  he  shall  grant  a  judgment  by  default  against  the 
defendant,  which  may  be  carried  into  execution  three  days 
after  being  notified  to  him. 

Art.  1086. — If  the  two  parties  appear  at  the  time  ap- 
pointed, the  justice  shall  immediately  proceed  to  hear  them 
and  to  render  judgment,  and  in  this  case  the  judgment  may 
be  executed  without  being  notified. 

Art.  1087. — The  parties  may  appear  before  the  justice 
either  in  person,  or  by  a  special  attorney  or  by  a  lawyer. 

Art.  1088. — At  the  time  of  trial,  or  before,  each  party 
may  call  on  the  other  to  testify  on  oath,  on  the  matters  in  dis- 
pute between  them,  and  the  justice  may  receive  their  declara- 
tion in  ^vriting,  and  annex  it  to  the  record,  after  having  caused 
it  to  be  signed  by  the  party  attesting,  or  his  mark  made,  if  he 
cannot  write. 

Art.  1089. — If  the  suit  be  in  revendication  of  a  movable 
object  and  the  defendant  pleads  to  the  jurisdiction  of  the  jus- 
tice of  the  peace,  on  the  ground  that  the  thing  claimed  is  be- 
yond the  value  of  which  he  has  cognizance,  the  judge  shall 
cause  it  to  be  appraised  by  two  persons  selected  by  the  parties 
and  sworn  by  him,  who  shall  make  their  a])praisement  in  writ- 
ing, and  according  to  such  appraisement  the  justice  shall  de- 
termine whether  he  be  competent  or  not.  If  one  of  the  par- 
ties refuse  to  name  an  appraiser,  the  justice  shall  appoint  one 
for  him,  and  shall  also  appoint  an  umpire  if  the  two  first  can- 
not agree  in  the  appraisement. 

Art.  1090. — The  party  considering  himself  injured  by  the 


.  BEFORE   JUSTICES    OF    THE    PEACE.  359 

judgment,  may  appeal  from  it,  on  declaring  such  his  intention 
to  the  justice,  without  presenting  any  petition,  and  the  jus- 
tice shall  note  the  time  of  such  appeal,  and  take  from  the  ap- 
pellant such  security  as  the  case  requires. 

Art.  1091. — If  the  defendant  has  pleaded  compensation, 
the  justice  shall  admit  the  plea,  if  the  amount  pleaded  be  a 
liquidated  sum,  or  can  be  proved  without  retarding  the  deci- 
sion of  the  cause ;  and  if  under  this  plea,  the  defendant  is 
only  indebted  for  a  balance,  the  justice  shall  give  judgment  for 
such  balance  only,  and  the  defendant  shall  pay  the  costs,  un- 
less he  had  oflFered  to  pay  such  balance. 

Art.  1092. — But  if  the  defendant,  on  pleading  compensa- 
tion, has  offered  to  pay  the  balance  wliich  he  considers  due,  by 
depositing  it  in  the  hands  of  the  justice,  the  defendant  shall 
only  pay  costs  up  to  the  time  of  such  offer,  and  the  plaintiff 
shall  bear  the  expenses  subsequently  incurred. 

Art.  1093. — If  the  compensation  pleaded  exceeds  the  de- 
mand, the  justice,  if  he  considers  the  plea  to  be  rightly  made, 
shall  render  judgment  in  favor  of  the  defendant,  if  he  prays  it, 
for  the  excess  of  the  debt  pleaded  in  compensation  over  that 
on  which  the  demand  was  founded,  and  the  plaintiff  shall  pay 
the  costs. 

Art.  1094. — If  it  be  proved  to  the  justice  that  before  the 
commencement  of  the  suit,  the  defendant  had  offered  to  the 
plaintiff  in  the  presence  of  a  credible  witness,  to  pay  the  sum 
or  thing  claimed  by  him,  the  justice,  in  pronouncing  judgment 
in  favor  of  tlie  plaintiff,  shall  sentence  him  to  pay  the  costs, 
and  shall  allow  him  no  interest  except  such  as  had  accrued 
before  the  offer. 

Art.  1095. — Except  in  the  cases  where  offers  have  been 
made,  as  provided  above,  the  party  cast  shall  always  pay  the 
costs,  although  the  judgment  be  for  a  smaller  sum  than  was 
claimed. 


360  OF    ORDERS    WHICH    JUSTICES    OF 


CHAPTER  III. 

OF     ORDERS    WHICH     JUSTICES    OF     THE     PEACE     MAY    MAKE 
IN    SUITS    COMMENCED    BEFORE    THEM. 

Art.  1096. — In  causes  within  their  jurisdiction  justices 
may  issue  orders  of  arrest,  attachment,  sequestration  and  pro- 
visional seizure,  according  to  the  rules  hereafter  provided. 

Art.  1097. — Every  creditor  for  an  amount  within  the  juris- 
diction of  a  justice  of  the  peace,  may  have  his  debtor  arrested 
and  compel  him  to  give  security  to  appear,  if  the  debtor  ia 
about  to  depart  from  the  State,  or  from  the  parish  ■where  he 
has  his  domicil,  or  if  ho  has  no  domicil  in  the  State. 

Art.  1098. — The  creditor  wishing  to  arrest  his  debtor, 
shall  make  liis  demand,  before  any  competent  justice  of  the 
peace,  to  have  the  debtor  cited  and  condemned  to  pay  the  sum 
due,  and  that  he  be  at  the  same  time  required  to  give  security 
to  appear  and  answer  the  said  demand. 

Art.  1099. — But  this  arrest  shall  only  be  ordered  by  tho 
justice,  on  the  creditor  making  an  affidavit  that  the  defemlant 
is  really  indebted  to  him  in  the  sum  demanded,  stating  such 
sum  precisely  ;  and  such  affidavit  shall  also  state  that  the 
creditor  really  believes  that  his  debtor  is  about  to  depart  from 
the  State  or  parish  of  his  domicil,  before  judgment  can  be  ob- 
tained against  him,  and  tliat  such  debtor  docs  not  to  his  know- 
ledge, possess  any  property  in  the  State,  to  satisfy  the  de- 
mand. 

Art.  1100. — When  the  demand  shall  be  brought  against 
a  person  having  no  domicil  in  the  State,  the  creditor  may  have 
him  arrested  and  held  to  bail,  by  declaring  in  his  affidavit  that 
such  creditor  has  no  domicil  in  the  State,  without  being  oblig- 
ed to  declare  that  he  is  about  to  dci)art,  but  in  other  respects, 
taking  the  same  oath  as  required  in  the  preceding  article. 

Art.  1101. — The  justice  to  whom  this  prayer  for  arrest 
shall  be  made,  accompanied  by  a  suitable  affidavit,  shall  de- 


THE    PEACE    MAY   MAKE   IN    SUITS,    ETC.  361 

liver  to  a  constable,  a  citation,  and  order  to  arrest  and  bring 
before  him  tlie  said  defendant,  and  he  may  answer  to  the  ac- 
tion brought  against  him. 

AiiT.  1102. — The  constable  charged  to  execute  this  order, 
shall  a.  rest  the  defendant,  on  delivering  to  him  the  citation  of 
which  b?  is  in  possession,  and  shall  take  him  before  the  justice 
of  the  peace  who  caused  him  to  be  cited,  if  the  said  justice  be 
at  his  ofrce. 

Art.  1103. — Tlie  justice  shall  require  from  the  defendant 
liis  bond  in  double  the  sum  demanded,  with  one  good  and  sol- 
vent surety,  conditioned  for  his  appearance  on  the  trial  of  tlie 
cause. 

Art.  1104. — If  the  defendant  will  not  or  cannot  give  the 
security  required  of  him,  the  justice  shall  send  him  to  prison, 
there  to  reniain  until  he  gives  the  security  demanded,  or  shall 
be  discharged  from  imprisonment  in  tlie  manner  provided  by 
law. 

Art.  1105. — If  the  constable  who  has  arrested  the  defend- 
ant does  not  find  the  justice  at  his  office,  he  may  take  from 
the  defendant,  the  security  for  his  appearance,  recpiired  above, 
or  in  default  thereof,  conduct  him  to  prison,  by  virtue  of  the 
order  which  ho  has  received. 

Art.  1106. — It  shall  be  the  duty  of  the  jailer  of  the  parish 
whither  the  defendant  shall  have  been  carried,  to  receive  and 
keep  him  until  £et  at  Hberty,  by  order  of  the  said  justice  ;  and 
for  the  support  of  the  defendant  while  in  prison,  the  plaintifif 
shall  pay  to  such  jailer,  weekly  and  in  advance,  the  sum  of 
three  dollars  and  iifty  cents. 

Art.  1107. — The  justice  of  the  peace  to  whom  the  plain- 
tiff shall  apply  for  the  arrest  of  his  debtor,  shall  recpiire  from 
him  such  sum  as^  ought  to  be  advanced  to  the  jailer,  on  deliv- 
ering the  debtor  into  his  custody  ;  and  in  all  civil  actions 
brought  before  them,  jiistices  of  the  peace  may  demand  secu- 
rity for  the  costs. 

Art.  1108. — The  bond  to  be  furnished  by  the  debtor  un- 
der arrest,  shaU  contain  .i  condition,  that  if  he  should  depart 


362  OF    ORDERS    WHICH    JUSTICES   OF 

without  permission  from  the  justice  who  caused  him  to  be  ar- 
rested, or  should  fail  to  appear  to  satisfy  such  judgment  as 
may  be  rendered  against  him,  his  security  shall  be  bound  to 
satisfy  such  judgment,  to  the  amount  of  his  bond. 

Art.  1109. — Even  when  the  debt,  owing  from  a  person 
about  to  dei)art  from  the  State,  is  not  yet  due,  the  creditor 
may,  if  the  debt  be  one  of  which  a  justice  of  the  peace  has 
cognizance,  apply  to  any  competent  justice,  and  procure  the 
arrest  of  his  debtor  to  comi)el  him  to  give  security  for  his  ap- 
pearance when  the  debt  becomes  due. 

Art.  1110. — But  to  obtain  such  order  of  arrest,  the  cred- 
itor must  make  an  affidavit,  in  which  he  shall  declare  that  the 
person  whom  he  wishes  to  arrest  is  really  indebted  to  him  in  a 
sum  whicli  he  shall  sj^ecify  and  Avhich  is  not  yet  due,  and  that 
he  is  informed  and  verily  believes  that  such  debtor  means  to 
depart  permanently  from  the  State  for  the  purpose  of  defraud- 
ing his  creditors,  and  without  leaving  any  property,  as  far  as 
he  can  learn,  to  satisfy  them. 

Art.  1111. — In  case  of  such  arrest,  the  person  thus 
brought  before  a  justice  of  the  peace,  shall  be  set  at  liberty,  if 
he  furnishes  to  the  justice,  his  bond  in  double  the  amount  in 
which  he  is  indebted,  with  one  good  and  sufficient  security, 
conditioned  that  he  will  surrender  himself  on  such  judgment 
as  may  be  pronounced  on  the  debt,  when  it  becomes  due,  or 
that  his  security  shall  pay  it  for  him  ;  otherwise  the  justice 
shall  imprison  such  debtor  until  he  furnish  the  security,  or  pay 
the  debt. 

Art.  1112. — A  person  who  shall  have  become  security  for 
another,  in  a  cause  depending  before  a  justice  of  the  peace, 
may,  at  any  stage  of  the  cause,  provided  it  be  before  judg- 
ment, release  himself  from  all  responsibility  on  that  account, 
by  giving  .up  the  person  of  the  debtor  to  the  justice  who  took 
the  bond,  and  who  shall  then  imprison  the  debtor,  unless  he 
give  new  bail. 

Art.  1113. — The  bail  vho  wishes  to  give  up  the  debtor's 
person,  may,  if  the  debto    refuses   to  come  voluntarily,  or 


THE    PEACE    MAY    MAKE    IN    SUITS,    ETC.  363 

wishes  to  leave  the  State  or  the  jurisdiction  of  the  justice, 
without  his  consent,  apply  to  tlic  judge  who  took  his  bond,  to 
have  the  debtor  arrested,  as  p'ovidcd  above. 

Art.  1114. — If  the  bail  does  not  produce  the  body  of  the 
debtor  in  execution  of  the  final  judgment  which  has  been  ob- 
tained against  him.  the  plaintiff  may  apply  to  the  justice  who 
issued  the  execution,  if  the  constable  has  made  a  return,  stat- 
ing that  he  has  found  no  property  of  the  debtor,  and  obtain 
judgment  against  the  surety  for  so  much  as  is  covered  by  liis 
bond,  and  no  more. 

Art.  1115. — No  order  of  arrest  or  imprisonment  can  be 
obtained  in  civil  suits  commenced  against  minors,  unless  they 
make  a  business  of  buying  and  selHng  merchandise  ;  or 
against  a  woman  in  any  civil  case. 

Art.  1116. — A  person  who  is  creditor  for  a  sum  within 
the  cognizance  of  a  justice  of  the  peace,  may  attach  the  pro- 
perty of  his  debtor,  in  the  three  following  cases : 

1.  If  his  debtor  resides  out  of  the  State  ; 

2.  If  the  debtor  is  about  permanently  to  depart  from  the 
State  ; 

3.  If  the  debtor  be  only  transiently  in  the  State  and 
have  no  domicil  in  it,  or  so  conceals  himself  that  process  of 
law  cannot  be  served  on  him. 

Art.  1117. — A  creditor  who  wishes  to  obtain  an  order  from 
a  justice,  for  attaching  his  debtor's  property,  shall  make  an  af- 
fidavit that  such  debtor  is  really  indebted  to  him  in  a  sum 
which  he  shall  specify,  and  is  in  one  of  the  predicaments  men- 
tioned in  the  preceding  article,  describing  such  i)redicament 
expressly. 

Art.  1118. — The  creditor  sliall,  moreover,  deliver  to  the 
justice  his  bord  in  favor  of  tlie  defendant  for  double  the 
amount  of  the  demand,  with  one  good  and  sufficient  surety,  to 
answer  such  damages  as  the  defendant  may  sustain,  in  case 
the  attachment  should  prove  to  have  been  improperly  obtained. 

Art.  1119. — The  justice  of  the  peace  to  whom  such  demand 
and  affidavit  shall  be  presented,  shall  direct  to  a  constable  of 


364       OF  ORDERS  OF  JUSTICES  OF  THE  PEACE. 

the  parish  a  citation  against  the  defendant,  and  an  order  tc 
attach  the  movable  property  which  the  defendant  may  have  in 
the  parish,  wherever  it  may  be  found,  even  in  the  hands  of 
tliird  persons,  as  well  as  such  debts  as  may  be  owing  to  liim, 
although  they  are  not  yet  due. 

Art.  1120. — The  constable  charged  with  the  execution  of 
this  order  shall  begin  by  serving  on  the  defendant  the  citation, 
which  is  issued  in  the  same  manner  as  in  ordinary  cases,  if  such 
defendant  has  domicil  in  the  place,  or  if  he  can  be  found  ;  but 
in  the  contraiy  case,  or  if  the  defendant  be  absent,  the  consta- 
ble shall  affix  a  copy  of  such  citation,  in  English  and  French, 
at  the  door  of  the  parish  church,  if  there  be  one,  and  on  the 
door  of  the  court-house  of  such  parish. 

Art.  1121. — The  constable  shall  then  proceed  without  de- 
lay to  seize  the  movable  property  which  the  defendant  has  in 
his  parish,  to  the  value  of  the  sum  due,  together  with  interest 
and  costs,  and  shall  make  a  list  of  such  property  in  the  pres- 
ence of  a  credible  witness,  which  list  he  shall  deliver  to  the 
justice  issuing  the  order  of  seizure,  on  making  his  return. 

Art.  1122. — If  the  defendant's  property  consist  in  debts 
owing  to  him,  the  constable  shall  attach  and  stop  them  in  the 
hands  of  the  debtor,  after  receiving  his  declaration  of  the 
amount  due  by  him,  and  the  time  when  it  is  to  be  paid,  and 
shall  make  his  rejiort  of  it  to  the  justice,  as  above  directed. 

Art.  1123. — If  such  debtor  refuses  to  declare  what  he  owes 
to  the  defendant,  the  plaintiff  may  have  him  cited  before  the 
justice  of  the  peace,  to  compel  him  to  make  such  declaration 
under  oath  to  the  justice,  and  if  he  refuses  to  make  such  de- 
claration, or  fails  to  appear,  such  refusal  shall  be  considered  as 
an  acknowledgment  that  he  is  indebted  to  the  defendant  in  a 
sufficient  sum  to  discharge  the  demand,  and  judgment  shall  be 
rendered  against  him  in  favor  of  the  plaintiff. 

Art.  1124. — If  a  claim  be  made  before  a  justice  of  the 
peace  for  a  specific  object,  or  any  movable  of  a  value  within 
his  jurisdiction,  the  plaintiff  may  require  that  such  object  shaU 
be  sequestered  until  judgment  be  had,  if  he  makes  his  affidavit 


OF    APPEALS   FROM   JUDGMENTS,    ETC.  365 

that  he  verily  fears  that  the  defendant  means  to  remove  such 
object  out  of  the  said  justice's  jurisdiction. 

Art,  1125. — If  a  demand  be  made  for  a  sum  due  for  rent 
within  the  jurisdiction  of  a  justice  of  the  i)eace,  the  plaintiff 
may  demand  that  the  furniture  of  the  house  subject  to  the 
rent  be  seized  provisionally,  if  he  make  an  affidavit  that  he  is 
afraid  of  the  defendant  removing  it  from  the  house,  to  deprive 
him  of  the  pledge  which  he  has  on  it. 

Art.  1126. — Whenever  a  plaintiff  wishes  to  obtain  an  or- 
der of  seizure,  attachment,  sequestration,  or  provisional  seizure, 
before  a  justice  of  the  peace,  the  agent  or  attorney  of  such 
plaintiff  may  be  allowed  to  make  the  necessary  oath ;  Provided, 
such  oath  be  founded  on  his  own  knowledge,  and  not  on  infor- 
mation derived  from  his  principal. 

Art.  1127. — But  the  defendant  whose  jiroperty  shall  have 
been  seized,  attached,  sequestered,  or  provisionally  seized,  shall 
obtain  a  restoration  of  such  i:)roperty,  if  he  give  to  the  justice 
of  the  peace  his  bond,  with  one  good  security  in  double  the 
amount  demanded,  to  satisfy  such  judgment  as  shall  be  ren- 
dered against  him,  with  interest  and  costs. 


CHAPTER  IV. 

OF    APPEALS    FROM   JUDGMENTS   RENDERED    BY    JUSTICES 
OF    THE    PEACE. 

Art.  1128. — Appeals  from  judgments  rendered  by  justices 
of  the  peace  in  the  city  of  New  Orleans,  where  the  value  of 
the  object  in  dispute  exceeds  the  sum  of  twenty  dollars,  and 
in  the  other  parts  of  the  State  where  the  value  of  the  objects 
in  dispute  exceeds  ten  dollars,  are  brouglit  before  tlie  judges  of 
the  parish  where  such  justices  exercise  their  functions. 

Art.  1129. — Therefore,  in  all  causes  brought  before  a  jus- 
tice of  the  peace  in  which  an  appeal  is  allowed,  he  shall  make 
an  exact  statement  of  the  depositions  of  the  witnesses  produced 


366      OF  APPEALS  FROM  JUDGMENTS  RENDERED 

before  him  by  both  parties,  and  when  one  of  them  declares  ver- 
bally his  intention  of  taking  an  appeal,  he  shall  prepare  a  state- 
ment of  facts  containing  the  substance  of  such  depositions,  and 
after  communicating  it  to  both  parties,  he  shall  sign  and 
annex  it  to  the  record  which  he  shall  send  to  the  appellate 
court. 

JStat.  1828,  p.  158.— §  21.  The  articles  eleven  hundred 
and  twenty-nine,  eleven  hundred  and  thirty,  eleven  hundred 
and  thirty-six,  and  so  much  of  the  article  eleven  hundred  and 
thirty-five  of  the  Code  of  Practice  as  relates  to  the  statement  of 
facts  to  be  made  by  justices  of  the  peace,  shall  be  and  the  same 
are  hereby  repealed  ;  and  that  in  future  all  appeals  from  judg- 
ments rendered  by  justices  of  the  peace  shall  be  tried  in  the 
parish  courts  de  novo,  except  the  parties  mutually  agree  be- 
fore the  justices  of  the  peace  to  send  up  the  appeal  upon  a 
statement  of  facts  which  they  shall  make. 

Art.  1130. — But  if  the  parties  themselves  agree  on  such 
a  statement  of  facts,  the  justice  shall  allow  them  to  do  so  un- 
der his  direction,  and  shall  retain  this  statement  to  transmit 
to  the  appellate  court,  after  having  caused  it  to  be  signed  by 
the  parties,  or  their  marks  affixed,  if  they  cannot  write,  and 
certified  it  under  his  own  signature. 

See  1129,  and  amendment. 

Art.  1131. — No  appeal  from  a  judgment  before  a  justice 
of  the  peace  shall  stay  execution,  unless  the  said  appeal  be 
taken  three  days  after  the  judgment,  if  it  has  been  pronounced 
in  the  presence  of  the  parties,  or  within  three  days  after  the 
notification  of  it,  if  it  has  been  rendered  in  the  absence,  or  on 
default  of  one  of  the  parties,  and  unless  the  appellant  shall 
execute  his  bond  in  the  appellee's  favor,  with  one  good  and 
sufficient  security,  for  double  the  amount  of  such  judgment, 
conditioned  that  he  shall  pay  such  sum  as  shall  be  awarded 
against  him  on  the  appeal. 

Art.  1132. — If  the  appellant  will  not,  or  cannot  give  such 
security,  the  justice  of  the  peace  shall  allow  him  to  appeal  if 
he  give  security  in  a  sum  to  be  fixed  by  said  justice,  sufficient 


BY    JUSTICES   OF   THE    PEACE.  367 

to  pay  the  costs,  but  in  this'  case  the  appeal  shall  not  stay  ex- 
ecution. 

Art.  1133. — If  a  party  havin<T  cause  to  complain  of  a 
judgment  rendered  by  a  justice  of  the  peace,  allows  twelve 
months  to  elapse,  after  the  time  allowed  for  an  appeal,  ^vith- 
out  having  taken  one,  he  shall  no  longer  be  allowed  to  appeal, 
but  the  judgment  shall  acquire  the  force  of  res  judicata. 

Art.  1134. — A  justice  of  the  peace,  after  receiving  the 
appeal  and  security  of  the  appellant,  as  above  provided,  shall 
issue  a. citation  to  the  appellee  directing  him  to  appear  before 
the  appellate  court,  -within  three  days  after  service  of  the  said 
citation  by  a  constable,  if  he  resides  in  the  place,  or  allowing 
one  day  more  for  every  ten  miles  between  the  place  of  ren- 
dering the  judgment,  and  that  of  the  appellee's  residence. 

Art.  1135. — The  justice  of  the  peace  shall  also  transmit 
without  delay  to  the  office  of  the  appellate  court,  an  exact 
copy  certified  by  him,  of  the  proceedings  which  have  taken 
place  before  him,  and  also  of  his  judgment,  together  with  the 
statement  of  facts  prepared  by  him,  or  agreed  on  by  the  par- 
ties, and  of  the  citation  which  he  has  issued  to  the  appellee. 

See  1129,  and  amendmont. 

Art.  1136. — The  appellate  court  shall  decide  according  to 
the  statement  of  facts  and  the  document  submitted  to  it,  with- 
out permitting  the  j)arties,  in  any  case,  to  produce  the  same 
witnesses  who  were  examined  below  ;  but  it  may  hear  new  tes- 
timony, if  one  of  the  parties  shall  make  oath  that  he  had  not 
discovered  such  testimony,  until  after  the  judgment  was  ren- 
dered, notwithstanding  his  diligence,  and  that  such  testimony 
is  important  to  him  on  the  trial,  or  if  the  justice  of  the  peace 
failed  to  make  a  statement. 

Art.  1137. — The  appellate  judge,  whether  he  reverses  or 
confirms  the  judgment,  shall  remand  it  for  execution  to  the 
justice  below  ;  and  if  such  justice  should  be  dead,  absent  or 
no  longer  in  office,  he  shall  direct  another  justice  of  the  peace 
to  cause  the  said  judgment  to  be  executed. 


368  OF    THE    EXECUTION    OF    JUDGM.ENTS 

Art.  1138. — When  the  appellate  judge  reverses  the  judg- 
ment, he  shall  render  such  an  one  as  the  justice  of  the  peace 
should  have  rendered,  and  sentence  the  party  failing  on  the 
appeal  to  pay  the  costs. 

Stat.  5th  March,  1852,  p.  90. — That  article  one  thousand 
one  hundred  and  thirty-eight  of  the  Code  of  Practice  be  so 
amended  as  to  read  as  follows  :  When  the  appellate  court  re- 
verses the  judgment,  it  sh^ll  render  such  an  one  as  the  justice 
of  the  })eace  should  have  rendered,  and  sentence  the  party  fail- 
ing on  the  api)eal  to  pay  costs  :  and  the  a^jpellate  court  may 
in  its  discretion,  when  the  appeal  has  been  taken  from  a  judg- 
ment, sentence  the  party  appealing  to  pay  not  more  than  ten 
per  cent,  as  damages  on  the  amount  of  the  judgment  appeal- 
ed from,  over  and  above  any  interest  said  judgment  may  bear, 
if  it  shall  appear  that  said  appeal  was  frivolous  or  taken  for 
delay. 

CHAPTER  V. 

OF    THE    EXECUTION  OF    JUDC4MENTS    RENDERED    BY  JUSTICES 
OF    THE    PEACE. 

Art.  1139. — Three  days  after  a  judgment  has  been  ren- 
dered by  a  justice  of  the  peace,  if  it  was  in  the  presence  of 
the  parties,  or  reckoning  from  the  notification  of  it,  if  it  was 
rendered  in  the  absence  or  on  default  of  one  of  them,  the  jus- 
tice of  the  peace  shall,  if  required  by  the  party  in  whose  fiivor 
it  was  rendered,  or  if  no  appeal  has  been  taken,  or  such  an 
appeal  only  as  does  not  stay  the  execution,  issue  an  order  to 
seize  the  property  of  the  debtor,  to  an  amount  sufficient  to 
satisfy  the  judgment,  together  with  interest  and  costs. 

Art.  1140. — The  constable  directed  to  execute  this  order 
shall  proceed  to  seize  the  movable  property  of  the  debtor  if  he 
finds  any  in  his  parish,  to  a  sufficient  amount  to  satisfy  the 
execution  ;  and  he  shall  give  notice  of  its  sale  in  English  and 
French  within  ten  days,  at  the  customary  places,  in  situations 


RENDERED    BY   JUSTICES    OP    THE    PEACE.  369 

where  no  newspapers  are  published,  or  in  at  least  one  public 
paper,  in  places  where  they  are  printed. 

The  constable  cannot  seize  the  clothes  and  bedding  in  the 
use  of  the  debtor  and  family,  nor  his  arms  and  military  accou- 
trements, nor  the  implements  and  tools  of  the  trade  whereby 
he  gains  a  living. 

See  649,  and  Stat.  I8th  March,  1852,  p.  222,  annexed ;  see  also  644  ;  7  N.  S. 

332,  338. 

Art.  1141. — In  the  interval  between  the  seizure  and  sale, 
the  constable  shall  take  into  his  possession  and  deposit  in  a 
safe  place,  the  movable  property  thus  seized,  unless  the  debt- 
or execute  a  bond  with  one  sufficient  surety  in  double  the 
amount  of  the  judgment,  conditioned  that  the  said  property 
shall  be  forthcoming  on  the  day  of  sale. 

Art.  1142. — In  no  case  can  the  constable  appoint  a  keep- 
er, to  preserve  the  property  seized,  unless  with  the  written  con- 
sent of  the  debtor,  and  in  this  case  he  cannot  charge  more 
than  fifty  cents  a  day  for  the  costs  of  such  keeping. 

Art.  1143. — The  constable  shall  make  sale  of  the  proper- 
ty at  public  auction,  on  the  day  fixed  by  the  advertisement, 
and  (except  in  towns)  in  the  place  where  the  parish  court  is 
held  ;  but  in  towns,  the  debtor  may  direct  that  the  sale  shall 
be  made  at  the  place  where  the  sherijEf  is  in  the  habit  of  mak- 
ing sales  of  property  under  execution, 

Stat  I6th  March,  1830,  p.  120.— §  2.  From  and  after  the 
passage  of  this  act,  all  sales  directed  to  be  made  by  consta- 
bles, by  the  article  1143  of  the  Code  of  Practice,  shall  be 
made  at  the  office  of  the  justice  of  the  peace  nearest  the  re- 
sidence of  the  party  whose  property  is  seized,  or  at  the  most 
public  place  within  three  miles  thereof,  to  be  designated  by 
the  justice  of  the  peace  issuing  the  order  of  sale,  except  in 
towns  in  which  sales  shall  be  made  at  the  place  where  tho 
sheriff  is  in  the  habit  of  making  sales  of  property  under  exe- 
cution. 

§.  3.  It  is  hereby  made  the  duty  of  constables  to  return 
24 


370         OF  THE  EXECUTION  OF  JUDGMENTS 

every  process  to  them  directed,  together  with  their  proceedings 
thereon,  to  the  justice  issuing  the  same,  within  thirty  days  of 
the  date  tliereof,  except  such  as  are  required  to  he  summarily 
acted  upon. 

§  4.  All  property  seized  under  execution  by  constables, 
shall  be  appraised  and  sold  in  the  same  manner  as  property 
seized  and  sold  under  execution  by  sheriffs. 

Art.  1144. — If  the  constable  find  no  movable  property, 
he  shall  report  that  fact  to  the  justice  of  the  peace,  who  shall, 
if  the  creditor  require  it,  deliver  to  such  creditor  an  order  to 
distrain  directed  to  a  constable,  to  sequester  the  slaves,  and  in 
default  of  slaves,  the  immovable  property  of  the  debtor,  if  he 
has  any,  and  to  liire,  or  farm  them  out,  under  his  direction,  so 
that  the  crecHtor  may  be  paid  out  of  the  rent  or  liire  of  such 
property. 

Art.  1145. — The  constable  to  whom  this  order  is  directed 
shall  distrain  the  slaves,  and  in  default  of  slaves,  the  immova- 
ble property  of  the  debtor,  and  shall  hire  or  farm  them  under 
direction  of  the  justice  of  the  peace,  either  to  individuals,  or 
to  the  public  works,  for  a  sufficient  amount  to  pay  the  credit- 
or's judgment,  with  interest  and  costs,  witliin  three  months, 
at  the  farthest,  from  the  date  of  the  distringas,  if  he  find  not 
sufficient  property  to  distrain,  for  the  payment  of  the  debt 
within  that  time. 

Art.  1146. — If  the  constable  has  returned  that  he  found 
no  movable  property  to  seize,  and  if  the  debtor  has  slaves  or 
immovables,  or  both,  the  creditor  who  has  obtained  the  judg- 
ment may,  if  the  amount  of  the  judgment,  together  with  in- 
terests and  costs,  be  equal  to  fifty  dollars,  apply  to  the  justice 
of  the  peace  who  rendered  the  judgment,  and  obtain  from  him 
an  order  directed  to  the  sheriff"  of  the  parish,  to  seize  and 
sell  the  slaves  of  the  debtor,  and  if  there  be  no  slaves  his  im- 
movable property,  to  an  amount  sufficient  to  satisfy  the  judg- 
ment and  costs  of  the  execution  ;  and  it  shall  be  the  duty  of 
the  sheriff"  to  execute  such  order,  and  to  seize  and  sell  the 
slaves,  or  immovables  of  the  debtor,  in  the  same  manner  as  on 
executions  directed  to  him  by  the  ordinary  tribunals. 


RENDERED    BY    JUSTICES    OF    THE    PEACE.  371 

Art.  1147. — If  several  creditors  have  obtained  separate 
judgments  against  the  same  debtor,  each  for  a  less  sum  than 
fifty  dollars,  but  whicli  added  together  would  exceed  that 
sum,  they  may  apply  to  a  justice  who  has  rendered  one  of  said 
judgments,  and  obtain  an  order  of  execution  directed  to  the  | 
sheriff  of  the  parish,  to  seize  and  sell  the  slaves,  and  if  there 
be  n(N  slaves,  the  immovable  property  of  their  debtor,  to  dis- 
charge the  amount  of  the  various  judgments  which  they  have 
obtained,  although  such  judgments  may  have  been  rendered 
by  different  justices  of  the  peace. 

Art.  1148. — If,  after  a  judgment  has  been  rendered 
against  a  debtor  by  a  justice  of  the  peace  in  the  parish  where 
he  resides,  he  removes  to  another  parish,  the  justice  of  the 
peace  may  direct  an  order  to  one  of  the  constables  of  the 
parish  to  which  he  has  removed,  to  seize  and  sell  his  movable 
property,  or  distrain  and  hire  out  liis  slaves  or  immovable 
property,  as  the  case  may  require  ;  and  it  shall  be  the  duty 
of  such  constable  to  execute  his  order,  and  to  make  his  return 
in  the  same  manner  as  if  it  had  been  directed  to  him  by  one 
of  the  justices  of  his  own  parish. 

Art.  1149. — The  justice  of  the  peace  who  rendered  the 
judgment  may,  in  like  manner,  if  required  by  the  creditor, 
transmit  to  the  sheriff  of  the  parish  to  which  the  defendant 
has  removed  his  domicil,  an  order  by  which  he  shall  direct  him 
to  seize  and  sell  the  slaves,  and  if  there  be  no  slaves,  the  im- 
movable property  which  such  debtor  may  own  in  his  parish,  in 
cases  where  such  seizure  is  allowed  ;  and  it  shall  be  the  duty 
of  the  sheriff  to  execute  such  order,  and  make  his  return  as 
provided  in  the  preceding  article. 

Art.  1150. — When  the  creditor  who  has  obtained  a  judg- 
ment, finds  neither  movables,  slaves,  or  immovables  belonging 
to  his  debtor,  he  may,  as  soon  as  the  constable  has  returned 
that  he  finds  no  movables  to  seize,  obtain  an  order  to  imprison 
the  debtor,  on  making  an  affidavit  that  to  the  best  of  his 
knowledge,  the  said  debtor  possesses  no  property  which  can  be 
seized  in  the  parish. 

See  art.  729,  and  amendment. 


372         OF   THE    POWERS    OF   JUSTICES    OF    THE    PEACE. 

Art.  1151. — A  debtor  may  obtain  his  enlargement  by  de-* 
Glaring  on  oath  that  he  has  no  movables,  slaves  or  immovables 
to  satisfy  such  judgment,  except  the  clotlies  of  himself  and    T 
family,  his  bed,  arms,  and  military  accoutrements,  and  the 
tools  necessary  for  the  exercise  of  his  trade  or  profession. 


CHAPTEK  VI. 

OF  THE  POWERS  GRANTED  TO  JUSTICES  OF  THE  PEACE  FOR  THE 
PERFORMANCE  OF  THEIR  DUTIES. 

Art.  1152. — Justices  of  the  peace  possess  all  such  powers 
as  are  necessary  to  exercise  the  jurisdiction  conferred  on  them, 
in  cases  where  no  express  provision  has  been  made  by  this 
code. 

Art.  1153. — Justices  of  the  peace  may  summon  and  com- 
pel the  appearance  of  witnesses  in  the  causes  brought  before 
them,  and  if  the  witnesses  do  not  attend,  the  justices  may 
arrest  and  fine  them,  provided  the  fine  does  not  exceed  ten 
dollars,  for  the  benefit  of  the  parish,  for  each  failure  in  this 
respect  :  and  if  the  witnesses  appear  and  refuse  to  answer  the 
questions  put  to  them,  they  shall  be  imprisoned  as  guilty  of  a 
contempt  of  court,  for  a  time  not  to  exceed  that  specified  in 
the  next  article. 

Art.  1154. — Justices  of  the  peace  may  punish  a  contempt 
of  their  authority  by  an  imprisonment  not  exceeding  twenty- 
four  hours. 

Art.  1155. — They  may  grant  commissions  to  take  the  tes- 
timony of  witnesses  in  cases  depending  before  them,  when 
such  witnesses  reside  out  of  the  parish. 


OF  Constables  and  their  duties  373 

CHAPTER  VII. 

OF  CONSTABLES  AND  THEIR  DUTIES. 

Art.  1156. — No  constable  shall  be  appointed  but  upon  the 
recommendation  of  two  respectable  persons,  who  shall  testify 
that  he  is  a  man  of  good  conduct  and  character,'  nor  unless  he 
give  bond  in  the  sum  of  five  hundred  dollars,  with  one  or  two 
landholders  residing  in  the  parish,  as  security  for  the  faithful 
performance  of  his  duties  as  constable,  and  for  the  payment  of 
such  moneys  as  he  may  collect  in  that  capacity. 

Art.  1157. — Constables  shall  be  appointed  by  the  police 
jury  of  each  parish,  and  it  shall  be  the  duty  of  the  judge  of  the 
parish  in  which  they  are  appointed,  to  administer  an  oath  to 
them  to  perform  faithfully  the  duties  of  their  office,  and  to 
require  from  each  of  them  the  security  mentioned  in  the  pre- 
ceding article,  which  security  shall  be  filed  in  the  clerk's 
office,  after  which  the  said  judge  shall  dehver  to  them  a  certi- 
ficate of  their  appointment  under  the  seal  of  his  court. 

Art.  1158. — Justices  of  the  peace  may  appoint  constables 
specially,  when  the  police  jury  shall  have  failed  to  do  so ;  pro- 
vided that  every  constable  so  appointed  shall  before  entering 
the  duties  of  his  office,  give  bond  as  provided  for  in  the  previous 
section,  which  appointment  shall  continue  until  a  constable 
shall  be  appointed  by  the  pohce  jury. 

Art.  1159. — No  justice  of  the  peace  for  the  city  and  pre- 
cincts of  New  Orleans  shall  employ  any  constable  to  execute 
his  orders  in  civil  matters,  without  having  in  his  possession  an 
authentic  copy  of  the  security  which  such  constable  has  given 
to  the  parish  court,  and  if  it  appear  to  him,  on  examination 
of  said  copy,  that  the  person  or  persons  given  as  security  have 
left  the  parish,  or  become  bankrupt,  he  shall  acquaint  the 
parish  judge  of  the  fact,  who  shall  thereupon  require  new 
securities  from  the  said  constable. 


374  OF    CONSTABLES    AND    THEIR    DUTIES. 

Art.  1160. — Constables  can  only  exercise  their  dutial 
within  the  parish  for  which  they  are  appointed,  and  they  shall 
execute  all  orders,  decrees,  and  judgments  which  judges  and 
justices  of  the  peace  may  direct  to  them. 

Art.  1161. — Constables  may  be  removed  by  the  parish 
judge,  on  complaint  made  against  them,  if  he  finds  that  they 
have  been  guilty  of  misconduct,  malversation,  or  gross  neglect, 
after  giving  them  notice  of  the  complaint,  and  hearing  their 
defence  ;  the  parish  judge  shall  also  cause  them  to  deliver  up 
their  commission  and  imprison  them  if  they  refuse,  and  until 
they  comply. 


END    OF   the   code   OF   PRACTICE. 


TABLE   OF  CONTENTS. 


PAOB 

OoNsn^-LTiON  of  1845 5 

Freamble ii. 

Lecrislativc  Department ib. 

Executive  Department 13 

Judiciary  Department 17 

Impeaohmont  Department 21 

General  Provisions 22 

Public  Education 28 

Mode  of  Revising  Constitution 80 

Schedule ib. 

Ordinance 84 

Constitution  of  1852 87 

Preamble ib. 

Distribution  of  Powers ib. 

Legislative  Department ib- 

Executive  Department 44 

Judiciary  Department 49 

Impeachment 64 

General  Provisions 65 

Internal  Improvements 61 

Public  Education 62 

Mode  of  Revising  Constitution 63 

Schedule 64 

Ordinance 65 


376  TABLE   OF    CONTENTS. 


PART  FIRST. 

OF  CIVIL  ACTIONS. 

TAGB 

Title  I.  Of  actions  in  general 70 

Chap.  1.  Of  the  general  divisions  of  actions ib. 

2.  Of  the  rules  applicable  to  all  civil  actions 72 

3.  Of  the  rules   peculiar  to  the  different  kinds  of  civil 

actions 74 

Sect.  1.  Of  the  several  kinds  of  personal  actions,  and  of  the 

rules  which  govern  them ib. 

2.  Of  the  real  action,  its  subdivisions,  and  the  rules  pe- 
culiar to  it 77 

§  1.  Of  the  petitory  action ib. 

2.  Of  the  possessory  action,  and  the  rules  which 

govern  it 78 

3.  Of  the  hypothecary  action,  and  of  its  rules 81 

Chap.  4.  Where  actions  are  to  be  brought,  and  in  what  manner  . .     85 

Sect.  1.  Of  judges,  their  jurisdiction;  how  their  competency 

is  regulated ib. 

2.  Of  the  mode  of  bringing  civil  suits,  of  suits,  and  of 

parties  litigant 89 

Chap.  5.  "What  persons  are  entitled  to  bring  actions 90 

6.  Against  whom  actions  may  be  brought 93 


PART    SECOND. 

CONTAINING  RULES  TO  BE  OBSERVED  IN  THE  PROSECUTION  OF  CIVIL 

ACTIONS. 

Title  I.  Proceedings  to  be  observed  in  the  prosecution  of  actions 

before  courts  of  original  jurisdiction 97 

Chap.  1.  Of  courts  of  original  jurisdiction,  and  their  powers ib. 

2.  Of  the  ordinary  proceedings 102 

Sect.  1.  Of  demand,  and  of  cumulated  actions 103 

2.  Before  what  tribunals  actions  are  to  be  brought 106 

3.  Of  petition  and  citation 108 

4.  Of  the  conservatory  acts  which  may  accompany  the 

demand 117 

§  1.  Of  the  arrest  of  the  debtor 118 

2.  Of  attachment  in  the  hands  ot  third  persons. . . .  126 

3.  Of  sequestration 137 


TABLE    OF    CONTENTS.  377 

PAGE 

§  4.  Of  provisional  seizure 142 

5.  Of  injunction 146 

Sect.  5.  Of  judgment  by  default 152 

6.  Of  the  ap[)earance  and  answer  of  the  defendant 154 

7.  Of  exceptions  and  defence 157 

§  1.  Of  dilatory  exceptions ib. 

2.  Of  declinatory  exceptions 158 

3.  Of  the  recusation  of  judges 159 

4.  Of  peremptory  exceptions 163 

Sect.  8.  Of  interrogatories  on  facts  and  articles 164 

9.  Of  issue  joined  (contestatio  litis) 167 

Ohap.  2.  Of  the  incidental  demands  which  may  be  made  pending 

the  action 168 

Sect.  1.  Of  demands  in  compensation  or  sets  off" ib. 

2.  Of  demands  in  reconvention 170 

3.  Of  demands  in  warranty 171 

4.  Of  intervention  or  interpleading 174 

6.  Of  the  opposition  of  third  persons 175 

Ohap.  3.  Of  the  proceedings  after  issue  joined,  until  judgment  be 

given 177 

Sect.  1.  Of  real  tender ib. 

2.  Of  the  amendments  which  may  be  made  to  the  peti- 
tion, or  to  the  answer,  of  the  consolidation  of 
causes,  and  of  commissions  for  examining  wit- 
nesses     181 

8.  Of  experts,  auditors  of  accounts,  and  judicial  arbitra- 

tors   190 

4.  Of  setting  causes  for  trial,  of  continuance,  and  of  the 

proceedings  preparatory  to  trial  and  judgment .  194 

Ohap.  4.  Of  trial  and  judgment 198 

Sect.  1.  Of  the  trial  or  discontinuance  of  the  suit ib. 

2.  Of  the  trial  before  a  jury 201 

3.  Of  judgments  and  costs 209 

Ohap.  5.  Of  the  mode  in  which  definitive  judgments  may  be  re- 
vised, modified,  and  reversed 213 

Sect.  1.  Of  new  trials 214 

2.  Of  appeal  and  statement  of  facts 215 

3.  Of  the  nullity  of  judgments 224 

4.  Of  the  rescission  of  judgments 226 

Ohap.  6.  Of  the  proceedings  in  execution  of  judgments 227 

Sect.  1.  General  provisions ib. 

2.  Of  the  execution  of  judgments  which  require  some- 
thing to  be  given,  or  something  to  be  done 229 


378  TABLE    OF   CONTENTS. 

PAQB 

Sect.  3.  Of  the  execution  of  judgments  directing  the  payment 

of  a  sum  of  money 233 

§  1.  Of  the  writ  of  fieri  facias ib. 

2.  Of  the  sale  and  adjudication  of  property  seized 

under  the  writ  of  fieri  facias 239 

3.  Of  the  consequence  of  the  adjudication,  and  of 

the  payment  of  the  price 254 

Sect.  4.  Of  imprisonments  on  judgment 259 

Ohap.  7.  Of  executory  process 264 

8.  Of  summary  process 269 

9.  Of  the  various  ofiicers  of  courts  of  original  jurisdiction.  271 
Sect.  1.  Of  the  duties  and  powers  of  sheritiTs  in  civil  matters,  ib. 

2.  Of  the  duties  and  powers  of  clerks 274 

3.  Of  ti'anslators,  criers,  and  constables 287 

Chap.  10.  Of  orders  which  courts  of  justice  may  render  in  certain 

cases 288 

Sect.  1.  Of  the  writ  of  liabeas  corpus 289 

2.  Of  other  orders  which  courts  of  justice  may  render  .  296 
§  1.  Of  the  order  directing  the  performance  of  some 

specific  act 297 

2.  Of  the  order  forbidding  further  proceedings  in  a 

suit 299 

3.  Of  the  mandate,  having  for  its  object  to  ascer- 

tain the  validity  of  a  judicial  proceeding  . .  301 

4.  Of  the  mandate  to  prevent  an  usurpation  of  oflico  303 
Title  11.  Of  proceedings  in  the  supreme  court  of  the  State 305 

Til.  Of  the  proceedings  in  courts  of  pi'obatcs 315 

Ohap.  1.  Of  courts  of  probates,  and  of  their  jurisdiction ib. 

2.  Of  the  mode  of  proceeding  in  courts  of  probates 319 

Sect.  1.  Of  the  mode  of  proceeding  in  certain  actions .     ib. 

§  1.  Of  the  opening  and  proving  of  wills ib. 

2.  Of  the  appointment  of  tutors  and  curators,  of 

minors,  interdicted  and  absent  i)crsons 322 

3.  Of  the  appointment  of  curators  to  vacant  suc- 

cessions, and  to  absent  heirs 329 

4.  Of  the  benefit  of  inventory 331 

5.  Of  the  settlement  of  successions 332 

6.  Of  accounts  to  be  rendered  by  administrators  of 

estates,  and  other  persons 338 

7.  Of  the  removal  of  tutors,  curators,  and  testa- 

mentary executors 343 

8.  Of  the  partition  of  estates 344 

Sect.  2.  Of  the  proceedings  relative  to  all  actions  brought  in 

the  courts  of  probates 846 


TABLE    OF    CONTENTS.  379 

PAGB 
Title  IV. 

Chap.  1.  Of  the  jurisdiction  of  justices  of  the  peace  in  civil  mat 

ters 352 

2.  Of  the  mode  of  trial  before  justices  of  the  peace  ......  356 

3.  Of  orders  which  justices  of  the  peace  may  make  in  suits 

commenced  before  them 360 

•4.  Of  appeals  from  judgments  rendered  by  justices  of  the 

peace 365 

5,  Of  the  execution  of  judgments  rendered  by  justices  of 

the  peace 368 

6.  Of  the  powers  granted  to  justices  of  the  peace  for  the 

performance  of  their  duties 372 

Of  constables  and  their  duties 373 


(5-,, 


^^ 


